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Justices Scalia and Kagan recently spoke at the University of Mississippi School of Law, and heaped mounds of praise on each other. Though, I think Nino may have unintentionally slighted Justice Sotomayor:

Scalia, Kagan said, “is funny and charming and super-intelligent and witty.”

“And back atcha,” Scalia quipped, adding that if he had to pick someone for President Obama to appoint, “you’re the very best.”

Scalia still isn’t too keen on dancing with SS. Perhaps he could have meant, that when Stevens retired, and Sotomayor was already on the Court, then Kagan was the “very best.” Maybe.

This reminds me of RBG’s comments that President Obama could not confirm anyone better than her.

Referring to the political polarization in Washington and the unlikelihood that another liberal in her mold could be confirmed by the Senate, Ginsburg, the senior liberal on the nine-member bench, asked rhetorically, “So tell me who the president could have nominated this spring that you would rather see on the court than me?”

This can also be seen as a jab at two Justices who were confirmed with more than 60 votes, and countless other nominees who could also make it through.

Hello everyone. I apologize for interrupting your break with this note. I have submitted grades for Property I.  I am very proud of all of you. On the whole, you nailed it. I put together really difficult fact patterns that were quite open-ended, with the intent that there would be many, many, many correct answers. I thought I had considered all the possible answers, but several of you came up with things I didn’t even think of. Well done.

Additionally, many of you incorporated various concepts we talked about in class that were not in the textbook (such as the Coase Theorem, various natural law concepts, etc.). Also, if you haven’t already seen the Back to the Future trilogy, do yourself a favor and watch it. Question 1 will be a lot more interesting. As for Frozen, I’ll just let it go.

Finally, despite all of your concerns, almost every single one of you managed to completely answer the question within the word limit. In other words, the differences between the A, B, and C was not due to an inability to write within the word limits.

You can download the exam here.

You can download the A+ paper here. If this is your paper, please drop me a line.

The Grades

First year classes are subject to the school’s mandatory grading curve (see p. 84 of the handbook):

grades assigned in classes of 40 or more students shall conform to a mandatory grading distribution. That distribution provides for a required 9-16 percent for A+/A, a required 16-30 percent for A+/A/A-; a required 16-30 percent for C+/C/C-/D+/D/F; and a required 9-16 percent for C/C-/D+/D/F. The class average shall be 2.85-3.15.

I think you will find that I maximized the grades here. I approached the upper limits of the grades allowed above an A-, and approached the lower limits of grades below C+. In addition, the class average was very close to the upper limit (3.148). In other words, there were many more As than Cs, and the class averages were quite high.

Here is the full breakdown.

• Average: 3.148
• A and above – 14.3%
• A- and above – 27.0%
• C+ and below: 17.5%
• C and below: 9.5%

 

Thank you all for a great semester.

 

 

Welcome to Constitutional Law. This class will cover a wide range of topics in constitutional law, including our constitutional structure, the scope of federal powers, the separation of powers, the 14th Amendment’s Due Process and Equal Protection clauses, individual liberty, federalism, the First Amendment speech and religion clauses, the Second Amendment, the Supreme Court, and many other topics. We will be using “The Constitution of the United States” by Paulsen, Calabresi, McConnell, Bray (Second Edition, Foundation Press, 2013).

You can find the syllabus here.

You can see all of the lectures from last year’s ConLaw class here:

If you click the “Playlist” link in the upper left-hand corner of the video, you can see all the videos in the class.

View class page.

The lectures for this semester will appear on this playlist.

This term, the Supreme Court has issued four decisions from 40 argued cases. Overall, the FantasySCOTUS crowd correctly predicted 2 out of the 4 cases, for a 50% accuracy rate. {Marshall}+ correctly predicted the outcome in 3 out of 4 decisions. However, the crowd has a higher overall Justice accuracy rate of 63.89%. {Marshall}+ is less than 50% on predicting individual Justices. In other words, when the Crowd got the outcome right, it was more likely to guess the split. {Marshall}+ predicted the overall outcomes more accurately, but was less efficient with the split.  It is very early and it will be interesting to see if these trends continue as more decisions are rendered.

Warger v. Shauers

In Warger v. Shauers, Justice Sotomayor affirmed for a unanimous Court.  FantasySCOTUS nailed the decision, and quite well. The Crowd forecasted that all of the Justices would affirm, and at very high levels–all between 80% and 90%. Further, the crowds were able to forecast one of the rarest decisions, a 9-0 affirm. This is a split that {Marshall}+ does very poorly. Here, the algorithm forecasted a 9-0 reverse, all with confidence scores between 60% and 70%.

Integrity Staffing Solutions, Inc. v. Busk

In Integrity Staffing Solutions, Inc. v. Busk, Justice Thomas reversed for a unanimous Court.  Here, the algorithm beat the crowd. The Court unanimously reversed. FantasySCOTUS predicted a 6-3 reversal. The Crowd forecasted a 5-4 affirm. Specifically, of the Justices {Marshall}+ missed, the confidence scores were very low: Justice Ginsburg (55%), Sotomayor (53%), and Kagan (52%). In other words, the algorithm was very close to forecasting a 9-0 reversal, which would have been right on. Also, we should stress that Justice Sotomayor, joined by Justice Kagan, wrote a concurring opinion explaining that they agreed with a narrow conception of the Court’s holding. It is fascinating that our algorithm was able to sense their distance from the majority.Here, the crowd badly forecasted the votes of the liberal voted. FantasySCOTUS pegged Justices Ginsburg (81%), Breyer (76%), Sotomayor (83%), Kagan (80%) to affirm.  Here the algorithm caught something the crowd did not.

 

Dart Cherokee Basin Operating Co. v. Owens

In Dart Cherokee Basin Operating Co. v. Owens, the Court reversed in an odd 5-4 alignment. Justice Ginsburg, joined by the Chief Justice, Justice Breyer, Justice Alito, and Justice Sotomayor voted to reverse; Justice Scalia, joined by Justices Kennedy, Thomas, and Kagan voted to affirm. The crowd expected the Court to unanimously agree with the 10th Circuit. All of the votes were north 70%, so they were fairly confident. The algorithm forecasted a 7-2 reverse, which wasn’t correct, but was a lot closer. Specifically, the algorithm accurately predicted the votes of Chief Justice Roberts, as well as Justices Ginsburg, Breyer, Alito, and Kagan. But it missed the votes of Justices Scalia, Kennedy, and Thomas, who were all above 70%. Justice Sotomayor was predicted to affirm at 53%. This low value is awfully close to a reversal, which would have been correct.

Heien v. North Carolina

In Heien v. North Carolina, the Chief Justice Roberts wrote for 8 Justices to affirm; Justice Sotomayor penned a lone dissent to reverse. Both the crowd and the algorithm predicted a 5-4 decision to affirm along the usual lines. Instead, the Chief wrote a fairly narrow opinion for 8 Justices. Only Justice Sotomayor dissented. Both the crowd and algorithm predicted that Justices Ginsburg, Sotomayor, and Kagan would reverse, at over 70%. Only Sotomayor would splinter off and vote to reveres.

When Judge Roger Vinson of the Northern District of Florida voted in January 2011 to invalidate the entire Patient Protection and Affordable Care Act, there was no shortage of barbs from the left calling him a partisan hack. As I relate in Unprecedented:

Democrats, of course, saw things differently. Senator Max Baucus, the chairman of the Finance Committee who had shepherded the ACA through the Senate, declared the decision “one of the most specious and inadvisable arguments I have heard in a long time.” Sen- ator Patrick Leahy of Vermont counted the score. “A dozen federal courts have dismissed challenges to the law. Another four courts have heard arguments about its constitutionality; two have upheld the law as constitutional, and two have not. Legal challenges to the law are expected to reach the U.S. Supreme Court.”

Harvard’s Laurence Tribe, who had emailed then-Solicitor General Kagan to cel- ebrate the Democrats’ securing the votes for passage of the ACA, wrote: “Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.” Tribe described the case as “a political objection in legal garb,” and concluded that “there is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Con- gress,” and uphold the law, which is “clearly within Congress’s power.”

Akhil Amar was even harsher. He likened Vinson’s opinion to that of another judge with the name of Roger: Supreme Court Jus- tice Roger Taney, author of the infamous Dred Scott decision, which ruled that slaves were not people protected by the U.S. Constitution. “In 1857, another judge named Roger distorted the Constitution, dis- regarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. . . . History has not been kind to that judge. Roger Vinson, meet Roger Taney.” I suppose another nominal comparison to Justice Fred Vinson (chief justice from 1946-1953) would not have been as rhetorically powerful.