Is Stare Decisis Inconsistent with the Original Meaning of the Constitution?: Exploring the Theoretical and Empirical Possibilities

For some time, a scholarly debate has raged over whether a commitment to the original meaning of the Constitution allows for the doctrine of stare decisis, whereby courts defer to precedent simply because it is precedent. This Essay explains the range of theoretical possibilities for this seemingly incompatible duo, as put forth by originalism’s leading scholars, and situates these various theories on a continuum. The Essay ends with a preview of the difficulties and possibilities that follow from the various empirical answers regarding the relationship between stare decisis and the Constitution at the Founding

Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations

Seminole Rock (or Auer) deference has captured the attention of scholars, policymakers, and the judiciary. That is why Notice & Comment, the blog of the Yale Journal on Regulation and the American Bar Association’s Section of Administrative Law & Regulatory Practice, hosted an online symposium from September 12 to September 23, 2016 on the subject. This symposium contains over 20 contributions addressing different aspects of Seminole Rock deference. Topics include: History of Seminole Rock Empirical Examinations of Seminole Rock Understanding Seminole Rock Within Agencies Understanding Seminole Rock as Applied to Tax, Environmental Law, and Criminal Sentencing Why Seminole Rock Matters Should the Supreme Court Overrule Seminole Rock? Would Overruling Seminole Rock Have Unintended Consequences? What Might the Supreme Court Do? What Might Congress Do? The Future of Seminole Roc

Political Diversity and the Legal Academy: Three Empirical Studies

Law and politics are inseparably connected, with numerous studies showing that politics plays an influential role in legal decision-making. And law schools primarily exist to transmit and produce knowledge. So the political demographics of the legal academia has the potential to significantly influence the production of legal knowledge in the United States. Yet while previous studies have shown that the political demographics of the legal academy tilt strongly in one direction, no one has yet sought to understand what some of the mechanisms might be that cause this disparity. Further, no one has attempted to document the production of knowledge in an increasingly partisan area of the law: religion.This dissertation aims to begin filling those gaps. It does so through three empirical studies. The first tests several hypotheses as to why there are so few conservative or libertarian law professors: the Brain Hypothesis (lack of intellectual ability), the Greed Hypothesis (a desire for better paying jobs than academia), the Interest Hypotheses (a lack of interest in academic pursuits), and the Discrimination Hypothesis (discrimination based on political orientation). It does so by examining the publication and citation rates of law professors at the 16 highest-ranked law schools in the country. Using statistical matching techniques, the study examines a unique dataset to find that conservative/libertarian professors publish and are cited at nearly double the rate as their peers, a statistically significant difference. These findings are more consistent with a story of discrimination than the other potential hypotheses.The second study leverages models of discrimination developed by Gary Becker and Kenneth Arrow to measure the “rank gap” in law school hiring based on political orientation discrimination. The study draws on a unique of all newly-hired law professors from 2001-2010, and finds, using statistical matching techniques, that conservative/libertarian law professors are hired law schools averaging 12-13 ranks lower (i.e., less prestigious) than their liberal peers, after controlling for other predictors of the ranking of the law school one is initially hired at.Finally, the third study examines in a type of quantitative intellectual history the portrayal, or treatment, of religion in legal scholarship over a watershed 15-year period as relates to religion in American law, politics and society: 1998-2012. The study finds that religion is increasingly treated as something that is problematic, as compared to something positive, that not all religions are treated the same with some getting more favorable treatment in legal scholarship than others

Is Stare Decisis Inconsistent with the Original Meaning of the Constitution?: Exploring the Theoretical and Empirical Possibilities

For some time, a scholarly debate has raged over whether a commitment to the original meaning of the Constitution allows for the doctrine of stare decisis, whereby courts defer to precedent simply because it is precedent. This Essay explains the range of theoretical possibilities for this seemingly incompatible duo, as put forth by originalism’s leading scholars, and situates these various theories on a continuum. The Essay ends with a preview of the difficulties and possibilities that follow from the various empirical answers regarding the relationship between stare decisis and the Constitution at the Founding

Political Diversity and the Legal Academy: Three Empirical Studies

Law and politics are inseparably connected, with numerous studies showing that politics plays an influential role in legal decision-making. And law schools primarily exist to transmit and produce knowledge. So the political demographics of the legal academia has the potential to significantly influence the production of legal knowledge in the United States. Yet while previous studies have shown that the political demographics of the legal academy tilt strongly in one direction, no one has yet sought to understand what some of the mechanisms might be that cause this disparity. Further, no one has attempted to document the production of knowledge in an increasingly partisan area of the law: religion.This dissertation aims to begin filling those gaps. It does so through three empirical studies. The first tests several hypotheses as to why there are so few conservative or libertarian law professors: the Brain Hypothesis (lack of intellectual ability), the Greed Hypothesis (a desire for better paying jobs than academia), the Interest Hypotheses (a lack of interest in academic pursuits), and the Discrimination Hypothesis (discrimination based on political orientation). It does so by examining the publication and citation rates of law professors at the 16 highest-ranked law schools in the country. Using statistical matching techniques, the study examines a unique dataset to find that conservative/libertarian professors publish and are cited at nearly double the rate as their peers, a statistically significant difference. These findings are more consistent with a story of discrimination than the other potential hypotheses.The second study leverages models of discrimination developed by Gary Becker and Kenneth Arrow to measure the “rank gap” in law school hiring based on political orientation discrimination. The study draws on a unique of all newly-hired law professors from 2001-2010, and finds, using statistical matching techniques, that conservative/libertarian law professors are hired law schools averaging 12-13 ranks lower (i.e., less prestigious) than their liberal peers, after controlling for other predictors of the ranking of the law school one is initially hired at.Finally, the third study examines in a type of quantitative intellectual history the portrayal, or treatment, of religion in legal scholarship over a watershed 15-year period as relates to religion in American law, politics and society: 1998-2012. The study finds that religion is increasingly treated as something that is problematic, as compared to something positive, that not all religions are treated the same with some getting more favorable treatment in legal scholarship than others

Is Stare Decisis Inconsistent with the Original Meaning of the Constitution?: Exploring the Theoretical and Empirical Possibilities

For some time, a scholarly debate has raged over whether a commitment to the original meaning of the Constitution allows for the doctrine of stare decisis, whereby courts defer to precedent simply because it is precedent. This Essay explains the range of theoretical possibilities for this seemingly incompatible duo, as put forth by originalism’s leading scholars, and situates these various theories on a continuum. The Essay ends with a preview of the difficulties and possibilities that follow from the various empirical answers regarding the relationship between stare decisis and the Constitution at the Founding