Arthur D. Hellman (University of Pittsburgh School of Law, Emeritus) has posted The Business of the Supreme Court and the Structure of Federal Law: A Framework for Empirical Research on SSRN. Here is the abstract:
Empirical investigation of the work of the United States Supreme Court is now a major preoccupation of scholars. The subjects range widely; there is particular interest in studying the role of ideology in the Court’s decisions. For most of this research, one of the relevant variables will be the issues decided by the Court in each case. The thesis of this Article is that almost any empirical study of the Court’s work will be more valuable to the extent that it classifies issues in a way that takes account of the structure of federal law.
Federal law is not a collection of unrelated legal rules, nor does its structure shift over time to reflect changes in the social, political, and economic arrangements that generate legal disputes. Rather, the structure is grounded in fundamental principles of the American system of government that derive ultimately from the Constitution. One such principle is the limited powers of the national government. Another is reliance on an independent federal judiciary to enforce federal law, preserve the supremacy of that law from encroachment by states, and protect individual rights from overreach by government at any level.
The issue classification system presented here draws on these principles for its key elements. As its primary organizing device, the system uses four macro categories, each of which reflects one of the Court’s essential functions in the American legal system. In shorthand form, these macro categories are: individual rights, federalism and separation of powers, general federal law, and federal courts. The categories are rank ordered in a sequence that reflects the extent to which the law in each category contributes to fulfilling the Framers’ purposes in establishing a national judiciary. Because the four macro categories remain constant from one era to another, this issue classification system provides a firm foundation for studying aspects of the Court’s work that, almost invariably, will be timebound. In this respect – and others – the system contrasts sharply with the one used in the well-known database of Supreme Court decisions first created by Professor Harold Spaeth in the 1980s.
Spaeth’s counterpart to the four macro categories is a set of thirteen “issue areas.” These issue areas are free-floating collections of issues that that have some commonality, but often not much. There is no conceptual design that explains why those thirteen areas were chosen, and not others. And there is no external source that can validate the choices. Other features of the Spaeth system, including his approach to creating micro categories and his protocols for assigning cases to them, reinforce this fundamental weakness. Over the last several decades, empirical scholars have relied heavily on Spaeth’s database, including its issue classification system. In 2009, Professor Carolyn Shapiro published a detailed and cogent critique that identified serious flaws and anomalies in that system. But nothing has come along to replace it.
Among its other contributions, this Article offers an alternative. The Article provides a detailed explanation of the structure-based system, reflecting both conceptual and technical perspectives. Much of the Article is devoted to careful analysis of the different kinds of federal law that make up the Supreme Court’s docket and their relation to one another and to state law. The Article also examines two areas of research that are especially suited to use of this system: case selection in the Supreme Court and lawmaking by the federal courts of appeals. The latter is an understudied phenomenon, and another contribution of this Article is to explain its importance. An Appendix contains a complete list of the category codes. The codes can be used by any researcher to replace or supplement the issue coding in the Spaeth system.
Recommended.
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