Trivial Pursuit
Steven Jamar
stevenjamar at gmail.com
Fri Aug 18 06:05:10 PDT 2006
I think I need to include Lemon, Hardison, Reynolds, and Pierce, but
then again, I was a history major as an undergrad. :)
But then what to displace?
I fear I followed Chip's example here and tossed it.
Nonetheless, I do want to note a caveat to my general sense that the
information from such an endeavor is likely to be mostly sterile.
These sorts of analyses in diverse fields have yielded interesting
albeit problematic results. In the area of SCOTUS religion cases we
could get info such as everyone puts Smith in the top 5 and no one
includes Reynolds or Pierce. Or if practitioners and judges are
included in the survey, only academics include Reynolds and Pierce,
but no one else does. That is, one can get interesting (of a mostly
trivial pursuit sort of kind) info from such analyses. But, in the
end, it seems one would get better info just ranking the cases by the
number of times they have been cited by other courts, especially
federal circuit courts and the Supreme Court.
A more sophisticated computer analysis would require not just a list,
but more of a web -- tying cases to one another with weighted cords.
But that gets pretty hairy at every level.
Thanks, Doug, for responding to the request and for sharing the
response. Maybe I will now be inspired to send them a list as well
-- subject to all of your eloquently expressed caveats.
Steve
On Aug 14, 2006, at 2:01 PM, Lupu wrote:
> 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
>
>
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--
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8567
2900 Van Ness Street NW mailto:stevenjamar at gmail.com
Washington, DC 20008 http://iipsj.com/SDJ/
"Whenever you find yourself on the side of the majority, it is time
to pause and reflect."
Mark Twain
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