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Intriguing new article on SSRN, titled Statutory Interpretation In The Roberts Court’s First Era: An Empirical and Doctrinal Analysis (H/t Legal Theory Blog):

Empirical studies of the Supreme Court’s statutory interpretation cases are few and far between. Those that do exist tend to focus on a sampling of cases over time, cases interpreting statutes in one area of the law, or on one specific aspect of the Court’s interpretive practice, such as its reliance on legislative history. This Article takes a different approach, examining all of the Roberts Court’s statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article’s approach is both empirical and doctrinal, in that it presents descriptive statistics illustrating the Court’s and individual Justice’s rates of reliance on fourteen different tools of statutory construction, as well as engages in doctrinal analysis of the Court’s statutory cases, highlighting discernable patterns in the individual Justices’ interpretive approaches. The Article makes two significant contributions to the field of statutory interpretation: First, it identifies an interpretive divide between the Justices on the Roberts Court over what I call “legal landscape coherence” versus “statute-specific policy coherence.” In brief, the legal landscape coherence Justices focus on the legal framework surrounding the statute at issue and seek the interpretation that fits most coherently into the existing legal structure; while the statute-specific policy coherence Justices focus on the individual statute at issue and preference the interpretation that creates a consistent and coherent policy across like situations and across time. The Article maps out the Justices’ theoretical divide in detail and shows how the divide translates into stark empirical differences in the Justices’ individual rates of reliance on particular interpretive canons and tools. Second, prior empirical studies have shown that Supreme Court Justices frequently reference the practical consequences likely to result from an interpretation when deciding statutory cases. This Article breaks new ground by uncovering an important difference in the form of practical consequences to which the different Justices tend to give weight, pointing out that the landscape coherence Justices tend to focus on the administrability of the interpretation — e.g., its effect on judicial resources, the difficulty of implementing it, and the clarity and predictability of the rule created; while the statute-specific Justices focus on the policy effected by the interpretation — e.g., whether it fosters a consistent application of the statute over time, the arbitrariness of the policy created, and the justness of the interpretation. The Article concludes with three case studies illustrating how the Roberts Court’s interpretive divide works in practice.>

Assuming Sotomayor votes like Souter, this should serve as a very useful analysis of how the Roberts Court works.

It’s that time of the year. Exams! If you are a 1L, this is the time you should be freaking out. If you are a 2L, you should still be freaking out. And if you are 3L, graduating into this economy, well, you should be in a perpetual state of freaked-outedness.

A lot of my friends suffering through Exam Periods have asked me for advice, so I hope to shed some wisdom. This will be the first tip in a series of post leading up to Finals.

Tip #1: Know Thine Professor.

People always ask me, how do I prepare for an exam? The most efficient way to prepare for an exam, is to know what will be on the exam. Check if your professor leaves old exams in the library. Or, ask some previous students if they recall what was on the exam. If none of these options are possible, despair not. You would think that asking the Professor would be the easiest way to figure this out, but Professors are notoriously evasive when you ask them about the exams, rightfully so. But, you really should not need to rely on this last ditch prayer for relief.

When preparing for an exam, you need to remember one very important thing. The person writing that exam is the same person who lectured in front of you every week for the entire semester. Law school isn’t like baseball, where the Dean brings in a relief pitcher in the 9th inning to write and grade the exam (though that would be interesting).

At this point in the Semester, you should know how your professor operates. If you were paying attention (and if you were not, befriend a gunner ASAP), you should understand what he is interested in, and any peculiar quirks he may have. Use this knowledge to your advantage. Know thine professor.

For example, if your professor spent 80% of the class discussing the UCC or the Restatement, and barely focused on case law, that is a pretty good indication your exam will focus on the UCC or the Restatement. If your professor spent a lot of time on the moral obligations of tort law, rather than the black letter law of the Restatement, that is a pretty good indication you should be prepared to discuss these more holistic issues. If your Professor is an expert in eminent domain law, and publishes many articles on this topic, you can probably predict there will be some eminent domain questions on your exam.

This tip is not based simply on my experience as a student, but on human nature. If a Professor focuses class discussion on a certain topic and publishes on that topic in his professional career, it is safe to say that is the professor’s area of expertise. If he has expertise in an area, he will be able to more easily write, and grade, a question in that area. I am not saying Professors are lazy, but let’s just say they seek to maximize their comparative advantages. Thus, a Professor who is an expert in the MPC is more likely to test on MPC than on common law crimes. A Professor who previously worked for a certain regulatory agency is likely to test on cases involving that agency. It’s simple, yet predictable.

Now, you should not focus exclusively on the Professor’s area of expertise. This is foolish. In my experiences, new Professors, who haven’t quite figured out the ropes, are the biggest wildcards, and their exams are somewhat unpredictable. But, if you have a veteran professor, you can stack your time so you spend more time in that area.

Tip #2 Tomorrow. Creating your Cram Schedule.

Disclaimer: Caveat emptor. Take this advice at your own peril. If it doesn’t work, don’t complain. If it works, I appreciate Amazon.com gift cards. See also this advice from an anonymous law professor. And for some humorous exam tweets, see here.

With over 5o downloads and nearly 500 views in one week, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment has been selected as one of the Top 10 Articles on SSRN this week for Rights & Liberties. No doubt our citation in the Cato Amicus Brief, as well as links from the Legal Theory Blog helped. Download a copy and check it out.