Current Issue

  • Volume 64,
  • Number 6 -
  • March 2015

Articles

The Best for Last: The Timing of U.S. Supreme Court Decisions
Lee Epstein, William M. Landes, and Richard A. Posner
PDF

This Article investigates the hypothesis that the most important and, often, controversial and divisive cases—so called “big” cases—are disproportionately decided at the end of June. We define a “big case” in one of four ways: front-page coverage in the New York Times; front-page and other coverage in four national newspapers (the New York Times, Los Angeles Times, Washington Post, and Chicago Tribune); the number of amicus curiae briefs filed in a case; and the number of subsequent citations by the Supreme Court to its decision in a case. We find a statistically significant association between each measure of a big case and end-of-term decisions even after controlling for the month of oral argument (cases argued later in the term are more likely to be decided near the end of the term) and case attributes (e.g., dissents and concurrences) that increase the time it takes to decide a case. We also speculate on why big cases cluster at the end of the term. One possibility is legacy and reputational concerns: when writing what they think will be a major decision, the Justices and their law clerks take more time polishing until the last minute with the hope of promoting their reputations. Another is that the end-of-term clustering of the most important cases may tend to diffuse media coverage of and other commentary regarding any particular case, and thus spare the Justices unwanted criticism just before they leave Washington for their summer recess.

Universal Jurisdiction, the Alien Tort Statute, and Transnational Public-Law Litigation After Kiobel
Ernest A. Young
PDF

The Alien Tort Statute (ATS), enacted in 1789 as part of the first Judiciary Act, provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations . . . .” Although the statute lay dormant until the 1980s, the ATS has since become the font of transnational public-law litigation in American courts. This litigation, frequently involving largely foreign parties and events, is a form of civil-side universal jurisdiction. Like more traditional forms of universal jurisdiction, the ATS allows American courts to hear human-rights claims based on the enormity of the offense, even when the claims lack any significant ties to the United States. But unlike traditional universal jurisdiction, which is overwhelmingly a criminal phenomenon, ATS suits place control over initiation and conduct of this litigation in private hands and engage the exceptional machinery of American civil justice.

The Supreme Court sharply limited ATS suits in the 2013 case of Kiobel v. Royal Dutch Petroleum Co. This Article defends the Court’s rejection of universal jurisdiction in Kiobel and assesses the future of human-rights litigation in American courts. I submit that the scope of human-rights litigation under the ATS is best viewed not as a sui generis problem of foreign-relations law, as most lawyers and scholars have treated it, but instead within the more traditional federal-courts framework of implied rights of action and federal common law. Kiobel’s concerns about extraterritorial application of the ATS fit comfortably within this framework, and they suggest that the Court will be extremely cautious about expanding the scope of ATS litigation in future cases. I also situate the ATS within the context of broader debates about enforcement of international human rights. These debates raise two crucial questions of institutional design: reliance on supranational or national institutions, and public or private control of enforcement. This debate, too, can be usefully informed by domestic debates about regulatory enforcement.

Notes

Drones and the Fourth Amendment: Redefining Expectations of Privacy
Matthew R. Koerner
PDF

Drones have gained notoriety as a weapon against foreign terrorist targets; yet, they have also recently made headlines as an instrument for domestic surveillance. With their sophisticated capabilities and continuously decreasing costs, it is not surprising that drones have attracted numerous consumers—most notably, law enforcement. Courts will likely soon have to decipher the limits on the government’s use of drones under the Fourth Amendment. But it is unclear where, or even whether, drones would fall under the current jurisprudence. Because of their diverse and sophisticated designs and capabilities, drones might be able to maneuver through the Fourth Amendment’s doctrinal loopholes.

This Note advocates analyzing drones under an adapted approach to the reasonable-expectation-of-privacy test in Katz v. United States. Courts should focus more on the test’s oft-neglected first prong—whether a person exhibited a subjective expectation of privacy—and analyze what information falls within the scope of that expectation, excluding information knowingly exposed to the plain view of the public. This analysis also considers instances when, although a subjective expectation exists, it may be impossible or implausible to reasonably exhibit that expectation, a dilemma especially relevant to an analysis of drones.

Courts that adopt the recommended analysis would have a coherent and comprehensible approach to factually dynamic cases challenging the constitutionality of drone surveillance. Until then, the constitutional uncertainties of these cases will likely linger.

Doing the Public a Disservice: Behavioral Economics and Maintaining the Status Quo
Alison M. Newman
PDF

When deciding whether to grant a preliminary injunction or a stay pending appeal, courts consider, among other factors, whether granting the preliminary injunction or stay would disserve the public interest. In the context of individual-rights cases, courts often experience pressure to remedy the alleged constitutional harms immediately. However, behavioral-economic concepts demonstrate that such quick action can negatively affect society as a whole. Specifically, granting a right and then taking it away, as happens when a lower court grants a right and is reversed on appeal, results in a net loss to society. Using the recent same-sex marriage litigation, this analysis demonstrates that to avoid disserving the public interest, courts should consider the behavioral-economic effects of loss aversion and the endowment effect within the public-interest factor of the tests for preliminary relief and should attempt to maintain the status quo until the decisions are final.