Blog

Many thanks to the awesome Damon Root for this great interview. Here’s a summary:

Since it launched in November 2009,FantasySCOTUS.net has attracted nearly 5,000 players and become the toast of the legal world. The brainchild of 25-year-old Josh Blackman, a graduate of George Mason University Law School and a teaching fellow at Pennsylvania State University’s Dickinson School of Law, Fantasy SCOTUS asks players to predict the outcome of Supreme Court decisions based on their knowledge of the Constitution, legal precedent, and the proclivities of various Supreme Court justices. The game is a cousin to the thriving world of prediction markets, where participants bet on real-world outcomes in everything from elections to the Academy Awards.

From SSRN, an article titled The Posse Comitatus Act and Disaster Response (H/T Legal Theory Blog). Here is the abstract:

The federal government’s failure to quickly send active duty troops and other military assets to Louisiana in the wake of Hurricane Katrina primarily stems from its narrow interpretation of the Posse Comitatus Act (PCA), which generally bars the use of federal troops for domestic law enforcement. As this chapter explains, the complete breakdown of law and order during a catastrophic emergency such as Hurricane Katrina allows the president to unilaterally deploy federal troops. This authority to deploy federal troops in response to certain natural disasters, in accordance with the PCA and the Constitution, is found in the Insurrection Act, Stafford Act, and Comprehensive Environmental Response Compensation and Liability Act (CERCLA), as well as the Insurrection, Guarantee, Commerce, and Necessary and Proper Clauses of the Constitution. While there are significant restrictions on the domestic use of federal troops, the restrictions do not prevent the federal government from swiftly and adequately responding to catastrophes.

This article does not discuss the seizure of lawfully owned firearms by the United States during the aftermath of Katrina. For once, President Bush is being criticized for having too-narrow a view of executive power. Wow.

I am gearing up to launch FantasySCOTUS OT10. If all goes according to plan, it should be live the first Monday in October. Here are the proposed rules. I am unofficially opening up a notice and comment period for the next few days.

Predictions

For each case, users will predict how each of the nine Justices of the Supreme Court will vote. A Justice can either vote to AFFIRM, REVERSE the lower court, or RECUSE from the case and not cast a vote. Users can make predictions at any point before the case is decided, though predictions will be disabled on all days the Supreme Court announces that opinions will be released. Unlike last year, users will not predict the split and the outcome. These items were often too difficult to determine in split cases and pluralities. The current model is simpler, and allows users to more easily show off their SCOTUS skills.

Leagues

There will be two types of leaagues:

FantasySCOTUS Leagues – these Leagues will be created by FantasySCOTUS and anyone can join

• Law School Leagues – All law students and professors who sign up will automatically be enrolled in the league for their law school.
• The Elect League – This league is for the premier players. Users will be required to predict all cases that come before the Court and will be eligible for the Chief Justice, Senior Associate Justice, and Associate Justice Badges.
• The Least Dangerous League – For users who do not have the time to predict all of the cases before the Court, you can join one of the least dangerous leagues category league, and only make predictions in one of the four broad (and nebulously defined) categories: Constitutional Law, Business Law, Criminal Law, and International Law. Users of the category leagues will be eligible for the category badges.

User Created Leagues – Users can also create and join new leagues. We have integrated Facebook connect, so you will be able to invite all of your Facebook friends into your league. Users of these leagues will be eligible for the various league awards.

Users will be ranked within their leagues, as well as within the entire FantasySCOTUS realm.

Points

.For each correct guess, users will receive 10 points. If users correctly guesses the votes all nine Justices, users will receive a perfect score of 90 points.

Admittedly, some cases are difficult to score when a Justice votes to affirm in part and reverse in part. In such cases,

For example, in Schwarzenegger v. Entertainment Media Association, the Court of Appeals for the Ninth Circuit found that statute barring the sale of violent video games to children was unconstitutional. A user predict that Justices Roberts, Scalia, Kennedy, Thomas, and Alito will vote to reverse the Ninth Circuit, and that Justices Ginsburg, Breyer, Sotomayor, and Kagan will vote to affirm, or agree with the Ninth Circuit. Assume the user’s predictions are correct, except for Justice Kennedy, who in fact voted to affirm the lower court.

In this case the user will receive a total of 80 points because you correctly predicted 8 out of the 9 Justices (you failed to correctly predict the vote of Justice Kennedy).

We realize that in some cases, a Justice votes to affirm in part and reverse in part. In such cases, it is often hard to characterize whether it is an “affirm” or “reverse” vote. We will make a judgment as to whether the affirm or reverse vote is on a more prominent part of the case. We realize that standard is nebulous, but it is the only fair way to score cases.

If a case is DIG’d (Dismissed as Improvidently Granted), any predictions will receive no points. If, a case that is Vacated and Remanded, it will be treated as a DIG, and predictions will receive no points.

Badges

In addition to points, users can unlock fun badges for accomplishing certain goals within FantasySCOTUS.

The Elect Badges:

These badges are only available to players who participate in “The Elect” league, predict all cases, and score the highest points.

• The Chief Justice Badge – This is the most coveted award in FantasySCOTUS. This prize is awarded to the user with the highest total score. The winner of the Chief Justice Badge will receive the glorious golden gavel trophy, and all honors that accompany that esteemed prize.
• The Senior Associate Justice Badge – This badge is awarded to the runner-up to the Chief Justice. If, for any reason, the Chief Justice cannot serve out his term, the Senior Associate Justice will serve in his or her stead (just like on the Supreme Court).
• The Associate Justice Badges – This badge will be awarded for the users that finish in 3rd through 9th place.
• The Circuit Judge Badge – This badge will be awarded for users that finish in 10th through 19th place.
• The District Judge Badge – This badge will be awarded for users that finish in 20th through 29th place.
• The Magistrate Judge Badge – This badge will be awarded for users that finish in 30th through 39th place.
• The ALJ Badge – This badge will be awarded for users that finish in 40th through 50th place.

Category Badges:

These badges will be awarded to members of the Least Dangerous League who most accurately predict the cases in each category:

• The “Con Law” Badge
• The “Criminal Law” Badge
• The “Business Law” Badge
• The “International Law” Badge

The Justice Badges:

The Justice Badges reward users for correctly predicting the votes of an individual Justice with the highest accuracy

• The “Chief” Badge – This badge is awarded to the user that most accurately predicts. the votes of Chief Justice Roberts.
• The “Nino” Badge – This badge is awarded to the user that most accurately predicts. the votes of Justice Scalia.
• The “Transcendent Dimensions” Badge – This badge is awarded to the user that most accurately predicts the votes of Justice Kennedy.
• The “Grandfather’s Son” Badge – This badge is awarded to the user that most accurately predicts the votes of Justice Thomas.
• The “Neck Doily” Badge – This badge is awarded to the user that most accurately predicts the votes of Justice Ginsburg.
• The “Active Liberty” Badge – This badge is awarded to the user that most accurately predicts the votes of Justice Breyer.
• The “Jersey” Badge – This badge is awarded to the user that most accurately predicts the votes of Justice Alito.
• The “Yankees” Badge – This badge is awarded to the user that most accurately predicts the votes of Justice Sotomayor.
• The “Rookie” Badge- This badge is awarded to the user that most accurately predicts the votes of Justice Kagan.

League Badges:

• The “Chief Judge” Badge – This badge is awarded to the best team in all of FantasySCOTUS (formula that considers size and accuracy of league to be determined).
• The “Confirmed” Badge – This badge is awarded to the top performing user in each league.
• The “Borked” Badge – This badge is awarded to the user in each league with the fewest points (try not to get Borked).

No cash prizes are awarded.

Due Process

We realize that we are dealing with lawyers and law students, so let us explain the due process rights of users. If users disagree with the scoring of a case, an appeal must be filed at our contact page within 24 hours of the scoring update (which may be after the Supreme Court releases its opinion). We will reconsider all of our scoring opinions using an “abuse of discretion standard,” so plead your cases well. All determinations are final.

Last season we had several incidents involving cheating (see here and here). While we have taken numerous steps this season to prevent any and all cheating, if we discover a user is cheating, he will be banished and shunned from FantasySCOTUS. Just play fair.

Last year the Court released the photo on September 29, which was the Tuesday before the First Monday. Today is the Tuesday before the First Monday. Although Sotomayor had her investiture ceremony on 9/8/09, and Kagan will have her investiture ceremony this Friday, on 10/1/10.

Surely they will take the photograph before Friday? Come on SCOTUS. Get your act together! Someone needs to design the new FantasySCOTUS graphic for the start of the October 2010 season (coming really soon). JPS out! EK in!

Alan Gura (with whom I co-authored this article on McDonald) sent me a copy of a brief from an Eastern District of Illinois case dealing with Chicago’s post-McDonald law that bans gun ranges within the city limits. It is notable for its citation of a tweet from Professor Adam Winkler of UCLA (or @adamwinkler for those in the Twittersphere):

Nonetheless, the City invokes the work of noted UCLA Law Professor Adam Winkler relating to standards of review. This reliance is badly misplaced. Regardless of whether the cited article truly reflects the City’s position, it predates Heller’s rejection of rational basis, and McDonald’s finding that the Second Amendment secures a fundamental right, as well as the Seventh Circuit’s opinions applying intermediate review.1 But notably, Prof. Winkler agrees that Chicago’s range ban is unconstitutional: “Reasonable gun control is one thing, this another. Chicago requires 1 hour on range for handgun permit but bars ranges.” www.twitter.com/adamwinkler, Aug. 16, 2010, 3:18 p.m. (citation omitted) (last visited Sept. 26, 2010).