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This term, the LexPredict team will be generating predictions for all cases argued before the Supreme Court. First, we are aggregating the crowd-sourced predictions of the players on FantasySCOTUS. Second, we are generating predictions from {Marshall}+, our SCOTUS-prediction algorithm. You can view all of the predictions for Supreme Court cases at our Prediction Tracker and you can read more about the {Marshall}+ methodology via our paper on SSRN / arXiv and these presentation slides. For each sitting, we will compare the FantasySCOTUS predictions with the {Marshall}+ predictions.

In our first installment, we offered predictions for cases argued during the October sitting: Heien v. NC, Dart Cherokee Basin Operating Co., v. Owens, Holt v. Hobbs, Warger v. Shauers, Integ. Staff. Solns. v. Busk, and N.C. Board of Dental Examiners v. FTC.

In our second installment we offer predictions for the remainder of the cases argued during the October sitting, and all cases argued during the November sitting: Jennings v. Stephens, Teva Pharmaceuticals USA v. Sandoz, Omnicare v. Laborers District Council Construction Industry Pension Fund, Zivotofsky v. Kerry, Department of Homeland Security v. MacLean, Jesinoski v. Countrywide Home Loans, Johnson v. U.S., Yates v. U.S., M&G Polymers USA, LLC v. Tackett, T-Mobile South, LLC v. City of Roswell, Alabama Democratic Conference v. Alabama, Alabama Legislative Black Caucus v. Alabama, and Comptroller v. Wynne.

In this post, we offer predictions for the cases argued during the December sitting: Nickols v. Mortgage Bankers Association, Elonis v. U.S., Perez v. Mortgage Bankers Association, Whitfield v. U.S., B&B Hardware v. Hargis Industries, Young v. United Parcel Service, Hana Financial v. Hana Bank, Department of Transportation v. Association of American Railroads, Direct Marketing Association v. Brohl, Gelboim v. Bank of America Corporation, Alabama Department of Revenue v. CSX Transportation, U.S. v. June, U.S. v. Wong.

For these thirteen cases, FantasySCOTUS and {Marshall}+ agree with the outcome in five cases of the thirteen. FantasySCOTUS is predicting a significant number of affirms–much higher than the historical average. {Marshall}+ is predicting a majority of reverses, which is more in keeping with the Court’s practices. Because one of the variables in our algorithm considers the duration of time between when the case is argued, and decided, the predictions offered today may differ as the term progresses.

	FantasySCOTUS Crowds	{Marshall}+ Algorithm
Nickols v. Mortgage Bankers Association	8-1 Affirm	9-0 Reverse
Elonis v. U.S.	8-1 Affirm	9-0 Reverse
Perez v. Mortgage Bankers Association	6-3 Affirm	9-0 Reverse
Whitfield v. U.S.	8-1 Reverse	9-0 Reverse
B&B Hardware v. Hargis Industries	6-3 Affirm	9-0 Reverse
Young v. United Parcel Service	5-4 Reverse	9-0 Reverse
Hana Financial v. Hana Bank	9-0 Affirm	9-0 Reverse
Department of Transportation v. Association of American Railroads	9-0 Reverse	9-0 Reverse
Direct Marketing Association v. Brohl	9-0 Reverse	9-0 Reverse
Gelboim v. Bank of America Corporation	9-0 Affirm	9-0 Reverse
Alabama Department of Revenue v. CSX Transportation	5-4 Reverse	9-0 Reverse
U.S. v. June	9-0 Affirm	9-0 Reverse
U.S. v. Wong	6-3 Affirm	9-0 Reverse

Nickols v. Mortgage Bankers Association

Nickols v. Mortgage Bankers Association is an administrative law case. It considers whether agencies subject to the Administrative Procedure Act are categorically prohibited from revising their interpretative rules unless such revisions are made through notice-and-comment rulemaking.

The crowd expects the Court to affirm, near unanimously. Only Justice Sotomayor is forecasted to reverse, and her vote at 51% is effectively a wash. {Marshall}+ predicts a strong unanimous reversal.

Perez v. Mortgage Bankers Association

Perez v. Mortgage Bankers Association is the companion case to Nickols, posing the related question of whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.

While this crowd forecasts a vote of 6-3 to affirm, with Justices Scalia, Thomas, and Alito joining in dissent to reverse, {Marshall}+ also predicts a 9-0 reversal. Of note, the votes of Justice Scalia, Thomas, and Alito are slightly lower than those of the Justices the majority expects to affirm–but not by much.

Elonis v. U.S.

Elonis v. U.S. is a trendy case involving threats over social media. Specifically, it considers whether the First Amendment requires for a conviction of threatening another person the proof of the defendant’s subjective intent to threaten.

With respect to the relationship between the {Marshall}+ and the crowd, well, it’s complicated. The crowd expects almost all of the Justices to rule in favor of the government, and against the defendant Elonis. Justice Kagan, who sits at 51% to reverse, is effectively a wash. Meanwhile, the crowd expects all of the Justices to rule in favor of the defendant, and against the government.

Whitfield v. U.S.

Whitfield v. U.S. is a sentencing case. It considers whether 18 U.S.C. § 2113(e), which provides a minimum sentence of ten years in prison and a maximum sentence of life imprisonment for a bank robber who forces another person “to accompany him” during the robbery or while in flight, requires proof of more than a de minimis movement of the victim.

Here, the crowd and {Marshall}+ are in almost total agreement–the former predicting an 8-1 reverse, and the latter predicting a 9-0 reverse. Though, the vote of Justice Thomas to affirm is at exactly 50, so it is close enough to a unanimous reversal. Here, the government will almost certainly lose.

B&B Hardware v. Hargis Industries

B&B Hardware v. Hargis Industries is an intellectual property case. It considers whether a finding of a likelihood of confusion precludes respondent from relitigating that issue in infringement litigation, in which likelihood of confusion is an element.

The Crowd expects the Court to affirm, 6-3. The crowd, again, forecasts a unanimous reversal.

Young v. United Parcel Service

Young v. United Parcel Service is an employment discrimination case, that asks whether the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

The crowd predicts a 5-4 reversal, though it is tight with Justice Kennedy’s swing score only at 55%. The other conservative Justices are solid votes against Ms. Young. {Marshall}+, however forecasts a straight 9-0 reversal, with all of the Justices solidly behind the petitioner.

Hana Financial v. Hana Bank

Hana Financial v. Hana Bank, also an intellectual property case, asks whether the jury or the court determines whether use of an older trademark may be tacked to a newer one.

The crowd and {Marshall}+ are like two ships passing the night. The crowd predicts a solid 9-0 affirmance–the rarest of all splits. The algorithm predicts a solid 9-o reversal.

Department of Transportation v. Association of American Railroads

Department of Transportation v. Association of American Railroads is an constitutional and administrative law issue that considers whether the Passenger Rail Investment and Improvement Act of 2008 effects an unconstitutional delegation of legislative power to a private entity, Amtrak.

For this case, the crowd and {Marshall}+ are in complete agreement–both forecast a 9-0 reversal.

Direct Marketing Association v. Brohl

Direct Marketing Association v. Brohl, is a tax case that considers whether the Tax Injunction Act bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration.

Here too, the crowd and algorithm are in perfect agreement–both forecasting a 9-0 reversal.

Gelboim v. Bank of America Corporation

Gelboim v. Bank of America Corporation is a procedural matter that asks whether and in what circumstances the dismissal of an action that has been consolidated with other suits is immediately appealable.

The FantasySCOTUS crowd and the {Marshall}+ algorithm are diametrically opposite–the former predicts a 9-0 affirm, and the latter predicts a 9-0 reversal.

Alabama Department of Revenue v. CSX Transportation

Alabama Department of Revenue v. CSX Transportation is a tax case. It asks whether a state “discriminates against a rail carrier” when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors.

Here, the crowd and algorithm agree that the Court will reverse, but disagree on the split. FantasySCOTUS forecasts a 5-4 reversal with a liberal majority. The crowd predicts a fairly solid 9-0 reversal.

U.S. v. June

U.S. v. June is a Federal Torts Claim Act case, that asks whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the FTCA is subject to equitable tolling.

The crowd expects a unanimous affirmance, and the algorithm experts a unanimous reversal.

U.S. v. Wong

U.S. v. Wong, a companion case to June, asks whether the six-month time bar for filing suit in federal court under the FTCA is subject to equitable tolling.

The crowd expects three Justices to dissent in Wong, as compared to June–Justices Scalia, Thomas and Alito. The algorithm holds fast to a unanimous reversal.

Here is an overview of the articles, essays, Op-Eds, I wrote in 2014, as well as various talks and media hits I gave. You can find all of my accomplishments on my C.V.

Published Articles

Visit my SSRN page to view all of my works.

What better way to test recording acts, covenants, and latent defects that a question about the Ghostbuters! See if you catch the Michael Jackson and Justice Scalia references.

You are a junior associate at the law firm of Gohs, Baz, & Ters LLC. Your senior partner asks you to prepare a memorandum of no more than 500 words about a case currently pending before the New York Supreme Court. This dispute involves competing claims to Redacre involving Gozer, Louis, Jeanine, and the heirs of Zul and Vigo. New York adheres to all common law property rules, as articulated in the Restatement (First) of Property. New York applies a Race Notice Recording Statute.

—

On January 1, 2014, Gozer offered to sell Redacre to Louis for $100,000. Redacre, located in an area zoned for residential purposes, was a perfect spot for Louis to live. Before he acquired Redacre, Louis took a trip to the Records Hall to investigate the history of the property.

At the Records Hall, Louis retrieved the following records from the Grantee and Grantor indexes, starting his search with “Gozer” in the Grantee index:

Grantee Index

Grantor Index

In order to afford Redacre, Louis secures two mortgages. The first for $75,000 from City Bank. The second for $15,000 from Ecto Bank. Louis puts up the remaining $10,000 as a down payment from his savings.

Gozer offers Louis a general warranty deed, which provides that Louis takes Redacre “subject however, to all restrictions and covenants applying to this property.” After reviewing the records, Louis asks Gozer if there are any covenants on Redacre. Gozer replies, “No.” Without purchasing title insurance, Louis acquires Redacre on 2/1/14. Louis does not record his deed.

However, soon after Louis moves onto Redacre, things get thrilling. Out of nowhere, Louis hears an ominous voice bellow: “Darkness falls across the land. The midnight hour is close at hand. Creatures crawl in search of blood. For no mere mortal can resist the evil of the thriller.”

Instantly, the ghosts of Vigo and Zul appear. Louis screams, “Ah! The ghosts of property past! How Dickensian!” Both Zul and Vigo had long since died, but their spirits have haunted Redacre for years. While some ghosts remain in this world in order to perfect souls to enter the afterlife, these ghouls had a different goal–to perfect title to property.

First, the ghost of Zul hovers in front of Louis and shows him a covenant on Redacre, dated 1/1/1900. Zul is listed as the “covenantor” and Vigo is listed as the “covenantee.” The Covenant says Redacre may only be used for “commercial purposes.” Louis asks Zul and Vigo if they ever recorded the covenant. They both shake their heads no. “There is no data, only Zul,” the ghost replies. Louis says, “How was I supposed to know about that covenant!” Zul again shakes his head.

Second, the ghost of Vigo holds up a document, dated 1/1/50, signed by Vigo. The document states that “the owner of Redacre shall never remove the ghosts that haunt this land.” Louis asks if the document was ever recorded. Vigo shakes his head no, but explains that the ghosts have lived peacefully on the land since then. Louis said he had no knowledge of such an arrangement.

Third, Vigo holds up another deed, indicating that Gozer sold Redacre to Jeanine on 7/11/77. Louis looks at the deed closely, and it indicates that the grantee was “Jeanine,” but the grantor was listed as “Goser.” The deed indicates it was recorded on 7/15/1979.

Louis, thinks to himself—”Who are you going to call?” Then it hits him: “The Ghostbusters!” The Ghostbusters work in a very peculiar line of business—capturing and storing ghosts. The quartet drive around the streets of Manhattan searching for ghosts, isolating them with special “proton packs,” capturing them in portable “traps,” and then storing the ghosts in a special “containment unit” at their headquarters. Louis shouts to the spirits that he is calling the Ghostbusters who will eliminate them. The ghost of Vigo warns him that his heir will enforce the document prohibiting the removal of ghosts. Louis ignores him.

Soon, the Ghostbusters arrive. They isolate the spirits, trap them, and store them in their special containment unit. But left behind on the floor are the three documents: (1) the 1/1/1900 covenant between Zul and Vigo, (2) the document signed by Vigo on 1/1/1950, (3) and the deed from “Goser” to Jeanine on 7/11/1917. Louis shoves all three in a drawer.

The next day, the Ghostbusters send Louis the bill. Louis, who was broke, is unable to pay it.

Louis calls Gozer, and complains that the house was haunted. Louis demands that he refund the purchase price, and pay the bill to remove the ghosts. Gozer said the ghosts were “Not my problem.”

Gozer thought back to the time he purchased Redacre, and recalled that Vigo told him not to remove the ghosts. Gozer thought Vigo was crazy, and wanted to buy the property, so he said, “Sure. I’ll leave the spirits alone. I ain’t afraid of no ghosts.” Gozer didn’t believe such urban legends.

Gozer, who kept a copy of the key to Redacre, sneaks in and finds the three documents from the ghosts. Realizing that they may benefit him, on 10/1/14, Gozer brings all three documents to the records office. As the clerk is about to record the three documents about Redacre, he remembers that a week earlier Jeanine brought in a deed about Redacre, dated 7/11/1977 and originally recorded on 7/15/1979. Jeanine had asked the clerk to change the spelling on her deed of the grantor from “Goser” to “Gozer.” The clerk makes the change, and records Jeanine’s revised deed first. A few minutes later, the clerk records the three documents brought in by Gozer. Moments later, Louis storms into the Records Office, and frantically asks the clerk to record his deed from Gozer right away. The clerk does so, as the last act of the day before closing the records office.

After Louis fails to make payments on either of his mortgages, or the bill to the Ghostbusters, City Bank moves to foreclose Redacre. City Bank gives Louis one-week notice, and advertises the sale at the records hall. Louis begs for another week, telling the bank that he will soon get a lot of money from Gozer, who sold him a haunted house. The bank was not interested in delaying the sale. At the foreclosure sale, a manager from City Bank was the only bidder present. He places the only bid of $80,000, and acquires title to Redacre. One week later, City Bank sells Redacre back to Gozer for $79,000.

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, this massive property dispute begins its legal battle from the beyond.

—

1. Louis sues Gozer for failing to disclose the fact that Redacre was haunted. Gozer counterclaims that he had no knowledge that Redacre was haunted. As a matter of policy, discuss the validity of the doctrine of caveat emptor in this case. Specifically, address the strongest arguments in favor of Louis, and the strongest arguments in favor of Gozer.

2. Louis files suit against Gozer for giving him an unmarketable title. Please address (1) whether the title was marketable, (2) what present or future covenants were violated (if any), (3) should either Louis or Gozer have been on notice about any restrictions on the land, and (4) what is the significance of the clause that provides “subject however, to all restrictions and covenants applying to this property.”
3. (a) The heir of Zul—who still owns Greenacre—files for an injunction to stop Louis from living in the house on Redacre. The heir is seeking to enforce the 1900 covenant limiting the use of Redacre to commercial purposes. Please address (1) whether Louis is bound by this covenant, (2) and if so, what are his strongest defenses to the suit.
   (b) The heir of Vigo files a suit against Louis seeking damages for removing the ghosts in violation of the 1950 document. Please address (1) how the court should treat this document, (2) whether Louis is bound by it, and (3) if so, what are his strongest defenses to the suit.

4. Jeanine files a suit to quiet title on Redacre, claiming she acquired Redacre on 7/11/77 from Gozer. Louis counters that he had no notice of this deed. Under New York’s Race Notice recording statute, who will prevail?

5. Ecto Bank files a suit against Louis for a deficiency judgment. Louis counterclaims that the foreclosure sale by City Bank was not valid, and seeks to set aside the foreclosure sale. Address (1) the strongest arguments in favor of Ecto Bank for receiving a deficiency judgment, (2) the strongest arguments in favor of City Bank that the sale was valid, and (3) the strongest argument in favor of Louis that the foreclosure sale should be set aside.

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.

Garrett Epps notes the death of Alfred Leo Smith, the eponymous plaintiff of Employment Division v. Smith.

The Roseburg program hired Smith to help provide culturally relevant treatment, like the sweat lodge, to Native clients. He wasn’t looking for a landmark case; he had a wife and a new baby. He was swept into a constitutional controversy because a non-Native colleague, Galen Black, attended a peyote ceremony and told colleagues at the agency that he thought it would be a means of treating alcoholism and addiction. His bosses fired him on the spot. To the white people who ran the agency, peyote was not a religious exercise—it was an “illegal drug,” and Black was no longer fit to counsel recovering clients.

Then the bosses called Smith in and brusquely warned him that if he went to a ceremony and ingested peyote he would lose his job too. Not long after, Smith was invited to a ceremony. He had been warned, but the tone of disrespect to an Ancient Native faith rankled. He later recalled his immediate response: “You can’t tell me that I can’t go to church!”

Smith was not one to be intimidated. He attended the ceremony, took the sacrament, came back to work, and was promptly fired. Then he applied for unemployment.

The agency opposed his unemployment claim, saying the ceremonial use of peyote was “misconduct.” The state of Oregon, obsessed by the war on drugs, joined in the case (even though it wasn’t clear that Oregon law even prohibited what Smith and Black had done). State courts at every level found their conduct was protected by the First Amendment and ordered the state to pay them their benefits. The state refused to accept this, and took the case to the U.S. Supreme Court not once but twice.

At this point, attorneys for one of the many organized Native American Church groups began to pressure Smith to withdraw his claim. They feared the Court would rule against peyote use in native religious practices and set off a wave of persecution. The outside lawyers negotiated a settlement—but Oregon’s lawyers insisted that Smith and Black admit that they had engaged in “misconduct” and pay back the court-ordered unemployment they had already received.

“In the wee hours of the morning it came to me. Your kids are going to grow up and the case is going to come up one of these days and someone will say, ‘Your dad is Al Smith? Oh, he’s the guy that sold out,’” he remembered later. “I’m not going to lay that on my kids. I’m not going to have my kids feel ashamed. Even if we lose the case, they are going to say, ‘Yeah, my dad stood up for what he thought was right.’”

And you know the rest of the story. Justice Scalia’s opinion, ruling against Smith, begat RFRA, which begat Boerne, which begat RLUIPA, which begat Hobby Lobby.

It should be called Al Smith’s Law.

I was lucky enough to meet Smith in the last years of his life. He was one of the most remarkable men I have ever known. Because he knew I was writing about his case, he arranged for me to attend a ceremony. Since that experience, it’s been clear to me that only the most determinedly ignorant would mention peyote religion and “drug use” in the same breath.

Americans, and the national media in particular, live in a kind of collective fantasy they call “history,” in which things happen because of certain great men. But American history, the real history, is usually made by those outside the circles of privilege and power—people like Dred Scott, Rosa Parks, and Al Smith.