Trivial Pursuit

[Lupu]

Doug is a more responsible academic than I am.  When I got that 
request to rank the top 20 cases in my field, and I started to reflect on 
the exercise, I reached the same conclusion as Doug (that any such 
list was hopelessly arbitrary, and taken by itself, quite meaningless), 
and I threw away the request without responding.  I'm glad that Doug 
both made a response and communicated his reasons (which I share) 
for thinking this to be an empty endeavor when it is shorn of reasons.  
(I'll bet that Doug's responses will make him an outlier -- I'd guess that 
the less sophisticated you are about the field, the more likely it will be 
that you will put Lemon at or near the top of your list.   And it is hard to 
deny that Lemon remains the most important case for the lower 
courts.)  

All that said, I am surprised that neither Doug nor those who have 
commented on this game have suggested either Lynch v. Donnelly or 
Allegheny County v. ACLU for the list.  The lower courts have been 
flooded with cases about government support of religious symbols, 
especially at holiday time, and Lynch and Allegheny County are what 
they have to go on.  So I suspect that those two (like Lemon v. 
Kurtzman) are more heavily cited in the lower courts than any of the 
decisions on Doug's list.

Chip Lupu

On 13 Aug 2006 at 12:03, Douglas Laycock wrote:

> 
> Here is a potential source of endless pointless debate. Two professors
> are working on a mathematical model to rank the importance of Supreme
> Court decisions. They want to test their model against the subjective
> assessments of con law professors. So they asked me and I assume many
> others to rank order the twenty most important cases on a topic I knew
> well. My caveats, and my list, are below. 
> 
> 
> Douglas Laycock
> Alice McKean Young Regents Chair in Law
> The University of Texas at Austin
> 
> Mailing Address:
> Prof. Douglas Laycock
> University ofMichigan Law School
> 625 S. StateSt.
> Ann Arbor, MI 48109
> 
> 
> [addressee deleted]
> I am at last responding to your letter of June 26, asking me to
> list the twenty most important cases in my field, in order of
> importance. I have to emphasize that this is an essentially
> arbitrary exercise, for many reasons.
> 
> My topic is religious liberty. It is a tight knit area with a
> manageable number of Supreme Court cases. But it could be divided into
> three or four more homogenous subcategories, with some overlap; if I
> did that, we would of course get different results.
> 
> How does the most important case in possible subcategory 1 compare to
> the most important case in possible subcategory 2? That depends in
> part on how I rate the importance of the possible subcategories. It
> also depends on the clarity of the rules in each category; a single
> case that clearly resolves an important issue is more important than a
> case that introduces equally dramatic change but is unclear and leaves
> much unresolved. Citation frequency is likely to depend on the number
> of cases the Court reviewed in each possible subcategory.
> 
> Some cases are of great symbolic importance but little authority. In
> this field, Everson v. Board of Education and Lemon v. Kurtzman are
> such cases. They are famous and much cited but control almost nothing;
> Lemon does not make my top 20. For this and other reasons, citation
> networks may measure something different from authoritativeness.
> 
> A case may be very often cited but now overruled. Lemon is not
> there yet, but it's close. So are Sherbert v. Verner and
> Wisconsin v. Yoder. These three cases now stand for something very
> different from, and less than, what they originally stood for.
> 
> Cases are important for different reasons, which are often
> incommensurable. Cantwell v. Connecticut is a confused opinion on its
> not very important facts, but it incorporates the Free Exercise Clause
> into the Fourteenth Amendment. How does that compare to an opinion
> that clearly resolves a dispute over a much more important and
> recurring fact pattern?
> 
> West Virginia v. Barnette is important at least as much for its
> eloquenceas for its rule, and cited mostly for its famous
> quotations. How does that compare to authority on the merits?
> 
> How does a statutory opinion on important facts compare to a
> constitutional opinion on less important facts? How does a clear and
> decisive statutory opinion compare to a muddled constitutional
> opinion?
> 
> Some cases are very important to religious liberty but are decided on
> free speech, freedom of association, the scope of Congressional power,
> or some other related ground.
> 
> And so on and on. You may hope that your mathematical methods will cut
> through all this qualitative uncertainty and reveal a true order of
> importance. Maybe it will. But it may also cumulate distinct reasons
> for citation that are not additive.
> 
> Probably you have thought about these problems. But I had to
> mention them before give you a list that, in my view, took longer to
> produce than it is worth. With those caveats:
> 
> Topic: religious liberty
> 
>  1. Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
> 
>  2. Employment Division v. Smith, 494 U.S. 872 (1990)
> 
>  3. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
>  520 (1993)
> 
>  4.School District v. Schempp, 374 U.S. 203 (1963)
> 
>  5. Lee v. Weisman, 505 U.S. 577 (1992)
> 
>  6. Engel v. Vitale, 370 U.S. 421 (1962)
> 
>  7. West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)
> 
>  8. Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 126
>  S.Ct. 1211 (2006)
> 
>  9. Locke v. Davey, 540 U.S. 712 (2004
> 
>  10. Boy Scouts v. Dale, 530 U.S. 640 (2000)
> 
>  11. Board of Education v. Mergens, 496 U.S. 226 (1990)
> 
>  12. Cantwell v. Connecticut, 310 U.S. 246 (1940)
> 
>  13. Good News Club v. Milford Central School, 533 U.S. 98 (2001)
> 
>  14. City of Boerne v. Flores, 521 U.S. 507 (1997)
> 
>  15. Van Orden v. Perry, 125 S.Ct 2854 (2005)
> 
>  16. Cutter v. Wilkinson, 544 U.S. 709 (2005)
> 
>  17. Jones v. Wolf, 443 U.S. 595 (1979)
> 
>  18. Everson v. Board of Education, 330 U.S. 1 (1947)
> 
>  19. Wisconsin v. Yoder, 406 U.S. 205 (1972)
> 
>  20. Sherbert v. Verner, 374 U.S. 398 (1963)
> 
> 
> 
> 
> ----- End forwarded message -----



Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law 
The George Washington University Law School 
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu
ICLUPU at law.gwu.edu