Solicitor General Research Articles

'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics

This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case. The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies. Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.These final corrected page proofs are identical to the published version.

President Truman’s Justice Department and the Fight for Racial Justice in the Supreme Court

President Truman’s Justice Department and the Fight for Racial Justice in the Supreme Court IAN B. FAGELSON Introduction 2017 marked the seventieth anniversary ofan important landmark in the history ofthe Supreme Court. Although the Court’s deci­ sions in the Brown cases1 that destroyed the legal foundations of state-sanctioned racial discrimination were handed down during Dwight D. Eisenhower’s Presidency, much of the groundwork was laid on President Harry S. Truman’s watch. Faced with an unhelpful Congress, Truman’s contributions to civil rights were effectively confined to the bully pulpit (as witness, his speech to the NAACP at the Lincoln Memorial)2 and executive actions (such as establishing the President’s Committee on Civil Rights and endorsing its recommendations;3 desegregat­ ing the federal government4 and the mili­ tary).5 Even before he pledged support for civil rights at the Lincoln Memorial in June 1947, he engaged with Attorney General Tom C. Clark on how to combat the rise in Southern white terrorism and committed his Justice Department to tackling lynching.6 Moreover, on December 5, 1947, the Justice Department broke with tradition by interven­ ing7 for the first time in a case between private litigants where no concrete federal interest such as the interpretation of a U.S. statute was involved.8 At issue was the enforceabil­ ity of racially restrictive housing covenants. Between 1947 and 1952, Truman’s Justice Department participated five times, via written briefs and oral arguments, in private lawsuits urging the outlawing of segregation. The cases concerned housing,9 transporta­ tion,10 public accommodations,11 higher education,12 and, most controversially, ele­ mentary and high schools in Brown itself. In each case, the Supreme Court ruled unani­ mously in favor of the position argued by the 70 JOURNAL OF SUPREME COURT HISTORY Justice Department. However, there is little direct evidence of Truman’s personal in­ volvement in the Department’s actions. Whether the Department’s actions were true instances of Truman administration policy, rather than the work of liberal civil service lawyers in which the top level of the administration merely acquiesced, has been the subject of debate, as has the question of what considerations drove the interven­ tions. This article demonstrates that the story is more complicated than many scholars have suggested. After a brief literature survey and a description of the unique status of the Solicitor General, a study of each case in its historical context reveals that the level of engagement of the President and cabinet-level officials and the considerations that motivated them were not uniform throughout the period. None­ theless, the Department’s interventions must be regarded as acts of administration policy for which the President deserves considerable credit. Literature Survey Some scholars write on the basis of unstated assumptions as to whether the Justice Department acted at Truman’s behest.13 Michael Gardner, without citing hard evidence, asserts that Truman personally caused the Justice Department to act.14 According to Richard Dalfiume, Truman “allowed” the Justice Department to inter­ vene.15 William Berman claims, without citing evidence, that Truman did not autho­ rise, or even know about, several of the briefs.16 However, again without citing evidence, he also asserts that Truman person­ ally authorised the Department’s first inter­ vention in 1947.17 Barton Bernstein views the briefs as primarily the work of Justice Department lawyers in which the administra­ tion acquiesced and says that it is unclear whether Truman was “an enthusiastic supporter or a reluctant endorser of placing the Federal government on the side of civil rights in these cases.”18 In Cold War Civil Rights: Race and the Image of American Democracy,19 Mary Dudziak devotes an extended endnote to the question, concluding that the briefs should be viewed as an important part of Truman’s civil rights program and as “consciously adopted Truman administration policy.”20 The question of the extent (if any) of Truman’s personal involvement with the interventions is intertwined with controversy over Truman’s motivation for supporting civil rights. At one extreme, Richard Dalfiume and Michael Gardner see Truman’s commitment to civil rights as driven primar­ ily by moral convictions.21 At the other extreme, William...

The Making of the Supreme Court Bar: How Business Created a Solicitor General for the Private Sector

This Essay tells a simple but important story about power and the law: that of the rise of the modern Supreme Court bar. Since 1985, a small cadre of private attorneys has come to dominate Court advocacy. While the share of lawyers making their first arguments before the justices fell from 76% to 43% between 1980 and 2007, the fraction with ten or more arguments under their belt rose from 2% to 28%. Similarly, while litigators with five or more previous arguments were responsible for 5.8% of the case petitions granted in October Term 1980, that quotient soared to 55.5% by 2008. This elite bar disproportionately influences the Court's activity. Of the 17,000 lawyers who petitioned the Court from 2004 to 2012, the top sixty-six succeeded in getting their cases heard six times more often than their competitors. Interviews with former Supreme Court clerks, who read and summarize cert petitions for the justices, confirm that they place outsized weight on briefs filed by prominent advocates. Statistical analysis further shows that these lawyers significantly raise a party's chance of success on the merits. The bar's success on behalf of business has induced a form of "docket capture." As legal scholar Richard Lazarus has observed, the bar has forced a surge in antitrust cases that has softened anti-monoppolistic doctrine and cleared the way for aggressive mergers. It has similarly managed to persuade the justices to limit punitive damages in mass tort litigation. The bar has therefore played a crucial role in making today's Court one of the most business friendly in the nation's history.

The Judicial Bookshelf

The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. I. “The Supreme Court,” insisted Alpheus Thomas Mason and William M. Beaney nearly four decades ago, “has always con­ sisted largely of politicians, appointed by politicians, confirmed by politicians, all in furtherance of controversial political objec­ tives. [Since] John Marshall the Court has been the guardian of some particular interest and the promoter of preferred values.”1 This first sentence in the introduction to the sixth edition of the authors’ text and casebook on American constitutional law, however, did not go unchallenged. As Professor Mason explained to the author of this review essay some months after Prentice Hall published the new edition in January 1978, Justice Lewis F. Powell, Jr., had taken issue with the claim, letting the book’s senior author know that the Justice considered himself a judge, not a politician. Justice Powell’s mild admonishment may have said as much about the general public’s regard for politics and politicians as it did about the Justice. Mason and Beaney’s assessment joined the long-running conversation among stu­ dents of the Court as to whether or to what degree the Supreme Court is or should be a majoritarian or countermajoritarian institu­ tion, that is, whether the Court should bend with or againstthe tides ofpublic opinion. And in that calculation, certainly the President’s role in appointing Justices must figure prominently. However, to the degree that the opportunities for nominations are sporadic or reduced, so is the opportunity for different faces, interpretative approaches and values to be added to the Bench, a reality compounded by infrequent and irregular vacancies on the High Bench. Within those confines, recent Supreme Court appointments suggest a clear career path in that most recent Presidents have overwhelmingly preferred nominees who are themselves sitting judges or who at least have had experience as a judge, a practice which seems to discount Justice Felix Frankfurter’s unequivocal, if self-approving, assertion over a half-century ago that “the correlation between prior judicial experience and fitness for the Supreme Court is zero,”2 a statement he made as a rejoinder to those who—at a time ofheightenedjudicial activism —had insisted that judicial experience be a qualification for nominees to the Court. 184 JOURNAL OF SUPREME COURT HISTORY A Justice’s pre-Court experience figured prominently on an occasion shortly after Solicitor General Elena Kagan joined the Court in 2010. In a classroom of thirty undergraduates, this essay’s author distrib­ uted a table that listed the name ofeach ofthe sitting members of the Court, along with the date ofthe appointment ofeach, age at the time ofnomination, the appointing President, name ofthe Justice each had replaced, and the position held at the time ofnomination. I then asked my students for comment about anything on the table that struck them as noteworthy. Reactions varied considerably. Several noted the presence of three women. A few remarked that the Court of 2010 was the handiwork of five Presidents. Two thought some of the Justices seemed very old. Only one found it significant that all but Elena Kagan reached the High Bench from one of the U.S. Courts of Appeals. Their assumption —in a baseball analogy—was that if one wants to pitch and bat at Wrigley Field, the player must first pitch and bat in the minor leagues. Indeed, in the judicial context, that assumption seems to have been held by most recent Presidents. Moreover, had the table been constructed to reflect the Court before Justice John Paul Stevens’s departure and Justice Kagan’s arrival, it would have depicted a Bench where every Justice stepped to the top from one of the courts of appeals. Furthermore, Justice Sandra Day O’Connor’s retirement—she had come to the Supreme Court from the Arizona Court of Appeals— and Justice Samuel A. Alito’s arrival created an unprecedented situation: for the first time since the federal courts of appeals were created in 1891, every Justice had seen prior judicial service at that level, most often on the Court ofAppeals for the District ofColumbia Circuit. Moreover, even the failed presidential selections of recent decades overwhelmingly involved sitting judges: Judge John Parker, Justice Abe Fortas...

Friends You Can Trust: A Signaling Theory of Interest Group Litigation Before the U.S. Supreme Court

How do interest groups influence U.S. Supreme Court justices to vote in favor of their preferred outcomes? Following prior research on the influence of the Solicitor General, we develop and expand on the signaling theory of interest group influence via amicus curie briefs. We argue that an interest group's ideological reputation and the nature of the ideological signal it sends in its brief both function as powerful heuristics that convey information to the justices depending on the justices' own ideological preferences. When an organization files an amicus brief advocating for an outcome seemingly contrary to its traditional preferences (i.e., an unexpected signal), this signal should be more noticeable and credible than a signal in accordance with a group's conventional views (i.e., an expected signal). However, unexpected signals should have greater influence on justices who share the brief filer's preferences. We test our signaling theory on the terms from 1991 through 2002. We find that unexpected signals (but not expected signals) are associated with Supreme Court voting, and the influence of unexpected signals appears to be particularly strong among justices who share the ideological preferences of the brief filer.

The Decline of Supreme Court Deference to the President

According to entrenched conventional wisdom, the president enjoys considerable advantages over other litigants in the Supreme Court. Because of the central role of the presidency in the U.S. government, and the expertise and experience of the Solicitor General’s office, the president usually wins. However, a new analysis of the data reveals that the conventional wisdom is out of date. The historical dominance of the president in the Supreme Court reached its apex in the Reagan administration, which won nearly 80% of the cases, and has declined steadily since then. In the Obama administration, the presidency suffered its worst win rate, barely 50%. After documenting this trend, we discuss possible explanations. We find evidence that the trend may be due to growing self-assertion of the Court and the development of a specialized private Supreme Court bar. We find no evidence for two other possible explanations — that the trend is due to greater executive overreaching than in the past, or ideological disagreements between the Court and the presidency.

Statute Law Society Lecture, November 2016: A View from the Crossbenches

It is an honour for me to have been invited once again to deliver a lecture to the Statute Law Society. I can look back to the early years when the late Lord Renton laid down the foundations for the Society and to the work of the late Lord Rodger who took up the reins when Lord Renton had to pass on the work to someone else. I recall how much time and dedication Alan Rodger gave to the task which he had taken on. It was a task that was dear to his heart, which is why he took his responsibilities so seriously. He had learned much about how statutes were put together from his time as Solicitor General for Scotland and then as Lord Advocate, when he was the minister having...

It’s All about Edie, Stupid: Lessons from Litigating United States v. Windsor

There is really only one thing that I know for sure. No human being knows what life has in store for them. My client Edie Windsor surely didn't. As a young, middle-class woman growing up in Philadelphia after the Depression and World War II, she obviously had no idea what her future would hold. When asked shortly after we filed our case what it felt like to be a plaintiff, Edie remarked that it's one thing to be as a lesbian, but it's another thing entirely to be the lesbian who just happens to be suing the United States of America. (1) The same, of course, is true for me. As a closeted lesbian high school student in Cleveland, Ohio, as a closeted college student at Harvard, or as a (slightly) less closeted law student at Columbia Law School in the late 1980s, if you had told me that that one day, as an out litigation partner at Paul, Weiss, I would marry a woman, have a child, and then win a landmark civil rights case before the United States Supreme Court, I would have told you that you were certifiably insane. So when I received the telephone number of a then-eighty-year-old lady by the name of Edie Windsor, I obviously had no idea what would happen. Indeed, Edie at first wasn't so sure that she wanted to hire me. (2) In order to convince her, I had to play for her a video clip from my 2006 oral argument before the New York Court of Appeals in the New York marriage case. Keep in mind that perhaps this wasn't the best form of attorney advertising since that was a case that I lost. Badly. It wasn't even close, 4-2. (3) But fortunately for me, Edie was persuaded and ultimately, the Supreme Court issued its landmark decision that gay couples have the same right to be treated with dignity and respect that straight couples do. (4) Since I have had some time since the Windsor decision to reflect on that experience, I thought I would share with you some lessons that I learned from litigating the case. It is worth noting that I did not build my career to become a Supreme Court practitioner. I did not clerk for a Supreme Court Justice. I did not work in the Solicitor General's Office. In fact, my oral argument in Windsor last March was my first appearance ever before the United States Supreme Court. Instead, I grew up as a trial lawyer in the Paul, Weiss litigation department. I. Facts Matter One of the most important lessons that every trial lawyer learns is that facts matter. They matter a lot. In fact, any litigator worth their salt knows that facts can be stubborn things. It is unwise, if not foolish, to bring or defend any case without paying very close attention to every detail of the facts before, during and after trial. So what did this mean in the context of United States v. Windsor? First and foremost, it meant that we knew from the very beginning, to borrow a phrase from Bill Clinton's first presidential campaign, that It's all about Edie, stupid. (5) This was significant not only because of who Edie Windsor is, but because in contrast to many of the LGBT rights cases that had been brought in the past, our case involved only one plaintiff. I think that what often got lost in previous gay civil rights cases with multiple plaintiffs are the stories of the plaintiffs themselves. After all, it is hard for a judge or jury to focus on several plaintiff couples at once. But it is much easier to focus on only one. Unfortunately, when the facts fade into the background, a gay civil rights case can look more like a debate between Fox News and MSNBC than a case about real people and their lives. Our view was that the best way to defeat DOMA was not to focus on lawyers or pundits, but instead to tell the story of how DOMA harmed two real people, Edie Windsor and her late spouse, Thea Spyer. How did we do that? For one, we drafted what old-time New York practitioners would call a speaking complaint. (6) That's a more lengthy complaint than what is required by the Civil Practice Rules that attempts to tell a story. …

The Influence of the Solicitor General as Amicus Curiae on the Roberts Court, 2005–2014: A Research Note

ABSTRACTIn this article, we examine the influence of the Solicitor General (SG) as amicus curiae on Supreme Court decision making. We use the Supreme Court Database (SCDB) as well as original data on participation by the SG and other amici. Our data span the first ten terms of the Roberts Court: 2005 to 2014, inclusive. Our analysis employs logistic regression where the dependent variable is the ideological direction of the vote cast by each justice in each case (the “DIR” variable in the SCDB). To isolate the impact of the SG as amicus, we control for judicial ideology, the direction of the lower court decision under review, the participation of other amici, and whether the federal government is a party to the case. Our analysis shows that the influence of the Solicitor General as an amicus arguing for a liberal outcome exceeds that of the other variables in the model. The marginal effect of the Solicitor General as an amicus arguing for a conservative outcome is somewhat less, but still exceeds all other variables in the model except for the direction of the lower court decision. We also find that the SG's influence as amicus varies across the justices according to their ideological orientations. Liberal and moderate justices appear to be more influenced by the SG's amicus filings than do their more conservative colleagues.

The Supreme Court Meets a Gridlocked Congress

During oral argument in King v. Burwell, Solicitor General Donald Verrilli cautioned the Court that striking down the administration's interpretation of the Affordable Care Act's (ACA) subsidy provision would cause immediate harmful consequences – leading to millions losing health insurance coverage. Justice Scalia responded that if the Court's decision would lead to such a calamitous result, Congress could surely react to prevent it. Verrilli responded rhetorically Well, this Congress, Your Honor? Verrilli's comments highlight the current state of Congressional gridlock. The 112th and 113th Congresses were two of the most ineffective in history. The current 114th Congress thus far seems similarly unable to reach legislative compromises. The current state of Congressional gridlock raises important policy questions as well as separation of powers concerns. As the exchange between Scalia and Verrilli suggests, Congress's inability to respond to Supreme Court decisions raises the specter that the Supreme Court might decide cases differently than it otherwise would in an effort to avoid incurable consequences resulting from the Court's decision. On the other hand, if the Court ignores Congressional gridlock it may strike down a statute in a fashion that creates draconian results without a potential remedy. These concerns are exacerbated by the fact that the Roberts Court has faced, and will likely continue to face, numerous important challenges to Congressional enactments effecting large numbers of Americans. This essay discusses the Roberts Court in the current age of Congressional gridlock. It examines relevant opinions by the Court and comments by the Justices in an attempt to better understand how the Court views its own role during a time of Congressional inaction.

Call for the Views of the Solicitor General in Original Jurisdiction Proceedings: Solicitor General as Advisor or Advocate?

The Call for the Views of the Solicitor General (CVSG) is not a new tool in the Supreme Court’s arsenal and it has been utilized by the Court for decades in the exercise of its appellate jurisdiction. Interestingly, it is even more commonly used in the Court's original jurisdiction, particularly at the motion for leave to file stage. The Court issuing CVSGs at this early stage in original jurisdiction proceedings could have dramatic implications: in the case of states, because the Court has original and exclusive jurisdiction, an opportunity to be heard in front of the Supreme Court is their only chance at a day in court. A CVSG could be a powerful tool in determining whether parties will get recourse. Out of 140 cases between states that the Court has rendered a decision on, 17 involved a CVSG. Moreover, a quarter of those 17 cases where the Court has issued a CVSG in an interstate proceeding have occurred in the past five years. The Court seems to be turning to this device more often in original jurisdiction proceedings than it has in the past. In most of these cases, however, it’s likely not contentious. It’s not unusual for the Court to defer to the SG with a CVSG in matters concerning complex regulatory or sovereignty issues. Of these 17 cases, 16 deal with standard original jurisdiction subject matter: resource law, boundary issues, etc. For the Court to engage the objective advisory function of the SG in these types of cases is not only probably innocuous, but likely beneficial. The issue lies not in the trend of the higher frequency of CVSGs in original jurisdiction proceedings, but rather in circumstances when the CVSG is issued where it is difficult, if not impossible, to discern whether the Court is seeking to engage the SG as an objective advisor or as an advocate of the United States. Nebraska & Oklahoma v. Colorado is just a case. Nebraska and Oklahoma are seeking relief under the Supremacy Clause from Colorado’s enforcement of its recreational marijuana regulatory scheme in violation of the Controlled Substances Act. This case is wholly unlike other original jurisdiction proceedings where a CVSG has been issued, and given the complex federalism issues implicated by the subject matter, in addition to policy concerns with which the DOJ has been directly involved, it is difficult to imagine how the SG’s advocacy role would not be engaged in such a brief to the Court. This paper will argue that a CVSG at this early stage, in a proceeding where federal interests are so clearly entangled, should be met with wariness. The Court asking the advocate of the federal government whether Nebraska and Oklahoma should get to have their day in Court ought to raise suspicion. With this case being singularly unique, perhaps it is anomalous, and maybe even an appropriate use of the CVSG on balance. Or perhaps it, like the increase of the CVSG in original jurisdiction proceedings on the whole, is the beginning of a trend that could have major implications for the justiciability of claims between states before the Court.

Charles Fahy's “Brilliant Public Service as Solicitor General”

Journal Article Charles Fahy's “Brilliant Public Service as Solicitor General” : A Reply to Peter Irons Get access Charles J. Sheehan Charles J. Sheehan Search for other works by this author on: Oxford Academic Google Scholar American Journal of Legal History, Volume 55, Issue 3, September 2015, Pages 347–360, https://doi.org/10.1093/ajlh/55.3.347 Published: 01 September 2015

U.S. Supreme Court litigation and Solicitor General

U.S. Supreme Court litigation and Solicitor General

Debate - The Trafficking Protocol has Advanced the Global Movement against Human Exploitation: The case of the United Kingdom

When politicians, responding to public campaigns focused on human trafficking, make bold and over-emotive statements, invoking William Wilberforce and the pressing need to lead the global fight against slavery, the Trafficking Protocol,[1] proves its worth. Insulated from national political rhetoric, international treaties, be it the Trafficking Protocol or regional instruments, provide an invaluable structure for governments’ national legislative responses to human trafficking. As the United Kingdom’s (UK) Solicitor General noted,[2]The UK’s legal framework has been directly influencedby UN [United Nations] and EU [European Union] Conventions and Directives (emphasis added) … [and] The ‘Palermo Protocol’ continues to shape the UK’s response to human trafficking and in particular the care and support afforded to identified human trafficking victims.[1] In full: Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.[2] Speech, Solicitor General, Oliver Heald QC MP, ‘Prosecuting human trafficking and slavery: The law and the UK response’, UK Government, 12 October 2012, retrieved 6 January 2015 https://www.gov.uk/government/speeches/prosecuting-human-trafficking-and-slavery-the-law-and-the-uk-response

Implementation of the Islamic Criminal Law in Malaysia: Prospects and Challenges

First of all, I would like to correct a common mistake. Many people thought that Brunei has implemented hudud law. That is not correct. In fact, to this day, Brunei has yet to enforce that part of the Syari’ah Penal Code Order 2013 which contains hudud offences. Brunei has gazetted the law. The effective date has not been fixed yet. The most recent information I received from the Assistant Solicitor General of Brunei on 15th December, 2014 confirmed that the hudud law has not been enforced. In fact, the provisions of the Syari’ah Criminal Procedure Code necessary for the implementation are still under discussion. If we want to talk about criminal law and what is now called “Islamic criminal law”, in the Malaysian context, we have to start from the Federal Constitution.

Implementation of the Islamic Criminal Law in Malaysia : Prospects and Challenges

First of all, I would like to correct a common mistake. Many people thought that Brunei has implemented hudud law. That is not correct. In fact, to this day, Brunei has yet to enforce that part of the Syari’ah Penal Code Order 2013 which contains hudud offences. Brunei has gazetted the law. The effective date has not been fixed yet. The most recent information I received from the Assistant Solicitor General of Brunei on 15th December, 2014 confirmed that the hudud law has not been enforced. In fact, the provisions of the Syari’ah Criminal Procedure Code necessary for the implementation are still under discussion.If we want to talk about criminal law and what is now called “Islamic criminal law”, in the Malaysian context, we have to start from the Federal Constitution.

How Solicitor General Charles Fahy Misled the Supreme Court In the Japanese American Internment Cases: A Reply to Charles Sheehan

Journal Article How Solicitor General Charles Fahy Misled the Supreme Court In the Japanese American Internment Cases: A Reply to Charles Sheehan Get access Peter Irons, Ph.D., J.D. Peter Irons, Ph.D., J.D. Member of the bar, Professor of Political Science, Emeritus *University of California , San Diego. Boston University, 1973; Harvard Law School, 1978. Supreme Court of the United States. Search for other works by this author on: Oxford Academic Google Scholar American Journal of Legal History, Volume 55, Issue 2, April 2015, Pages 208–226, https://doi.org/10.1093/ajlh/55.2.208 Published: 01 April 2015

An Obligation to Act: Holding Government Accountable for Critical Infrastructure Cyber Security

Click to increase image sizeClick to decrease image size ACKNOWLEDGMENTSThe author would like to acknowledge the assistance of Julia Werneburg, Laura Morrison, Kathryn Ball, and Michele Krech, students in the Ottawa office of Gowling Lafleur Henderson LLP, for their contributions in the research and preparation of this article. Please note that this article does not constitute a legal opinion but is intended to provide the views of the author.Additional informationNotes on contributorsJacques J. M. ShoreJacques J. M. Shore is a partner in the Advocacy Department and former Chair of the firm's Government Affairs Practice at the Ottawa, Canada, office of Gowling Lafleur Henderson LLP. Prior to joining the firm he was the first Director of Research of Canada's Security Intelligence Review Committee, and a senior member of the Macdonald Royal Commission on the Economic Union and Development Prospects for Canada. Earlier, he was a staff member at the Secretariat of the Ministry of the Solicitor General. A law graduate of the Université de Montreal and McGill University, Mr. Shore is currently Chairman of the Council of Distinguished Advisors of the Norman Paterson School of International Affairs at Carleton University, Ottawa. He continues to actively support the international development of professional legal activities, specifically in Central and Eastern Europe.

Preemption in the Rehnquist and Roberts Courts: An Empirical Analysis

This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly preemption questions have assumed a distinctly ideological flavor. Preemption cases are much more likely to be contested than they were in earlier decades; and in those cases, once-rare judicial bloc voting has become common.

Preemption in the Rehnquist and Roberts Courts: An Empirical Analysis

This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject- matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly preemption questions have assumed a distinctly ideological flavor. Preemption cases are much more likely to be contested than they were in earlier decades; and in those cases, once-rare judicial bloc voting has become common.