The Supreme Court’s Political Docket: How Ideology and the Chief Justice Control the Court’s Agenda and Shape Law

by Benjamin Johnson

The Supreme Court is unique among federal courts in that it chooses—using the writ of certiorari—which cases it will decide. Justice Brennan once noted that this discretionary power is “second to none in importance.” This article examines the institutional politics behind this certiorari process. Specifically, it uses an original dataset of Justices’ agenda-setting votes from 1986 to 1993 to show how Justices use the rules that govern certiorari to pursue ideological goals. In addition, and in contrast to existing qualitative accounts, the data suggest some Justices queue off of the Chief Justice’s vote giving the Chief’s vote outsized influence. After analyzing the effects of politics at certiorari, the article considers possible reforms that might lessen or at least channel the effects of Justices’ policy preferences. To that end, the article offers a range of proposals to reform the certiorari process to promote transparency, to improve efficiency, and to enhance the Court’s legitimacy.

The Public Trust in Public Art: Property Law’s Case against Private Hoarding of “Public” Art

by Hope M. Babcock

  Private hoarding of important works of art is a phenomenon that has caused their disappearance from public view. The loss of this art undermines republican values like education, community, and citizenship, and therefore should be resisted. This Article explores various legal tools to prevent this from happening, including doctrines and laws that protect artists’ rights in their work, but which offer the public little relief. Turning to two well-known common-law doctrines—public dedication and public trust—to see whether they might provide a solution, the author favors the latter because it is nimbler and better suited to the public nature of important works of art. But she recognizes that making viable use of the public trust doctrine requires enhancement with incentives, such as those offered by listing the art on a register, the tax code, and external norms of social behavior. The Article is a tribute to Professor Joseph L. Sax’s public trust scholarship, which has inspired so many of us who follow in his footsteps.  

Ascertainability: Prose, Policy, and Process

by Rhonda Wasserman

One of the most hotly contested issues in class action practice today is ascertainability—when and how the identities of individual class members must be ascertained. The courts of appeals are split on the issue, with courts in different circuits imposing dramatically different burdens on putative class representatives. Courts adopting a strict approach require the class representative to prove that there is an administratively feasible means of determining whether class members are part of the class. This burden may be insurmountable in consumer class actions because people tend not to save receipts for purchases of low-cost consumer goods,
like soft drinks and snacks, and have no other objective proof of their membership in the class. Thus, in circuits adopting the strict approach, class certification may be denied, whereas in other circuits, the same class may be certified. Notwithstanding the circuit split on this critical issue, the Supreme Court has denied several petitions for writs of certiorari raising the issue; the Senate has failed to act on a bill passed by the House to address it; and the Advisory Committee has placed the issue on hold. Given the current state of disuniformity and the resultant inequitable administration of the laws, the time is ripe to address the issue. [...]

Constitutional Rights as Bribes

by Rosalind Dixon

  Constitutions worldwide protect an increasingly long list of rights. Constitutional scholars point to a variety of top-down and bottom-up explanations for this pattern of rights expansion. This Article, however, identifies an additional, underexplored dynamic underpinning this pattern in certain countries: the pairing of constitutional rights with various forms of structural constitutional change as part of a trade between civil society and dominant political actors in their aspirations, or support, for constitutional change. This form of trade, the Article further suggests, has potential troubling consequences for democracy: it can pave the way for the consolidation of dominant-party or presidential rule in ways that limit the effectiveness of rights-based constitutional changes themselves and pose a major threat to the institutional “minimum core” necessary for a true democracy. This, the Article argues, suggests a greater need for caution on the part of civil society before accepting rights as a form of “bribe,” or inducement, to support certain forms of structural constitutional change. For democratic constitutional designers, it also points to the advantages of “unbundling” different forms of constitutional change. The Article explores these arguments by reference to two recent examples of constitutional change, in Ecuador and Fiji, involving the combination of rights-based change with increasingly noncompetitive forms of democratic rule.

Connecticut’s Food Waste Problem: Innovation, Anaerobic Digestion, and the Dormant Commerce Clause

by Kara A. Zarchin

Connecticut has a food waste problem. Much of its food waste ends up in landfills where it rots and produces methane gas that contributes to global warming. This Note examines Connecticut’s efforts to address its food waste problem through a waste flow control law, Public Act 13-285. With this law, Connecticut became the first state to pass legislation to reduce food waste through state-mandated diversion. This Note frames its discussion of Public Act 13-285 in terms of federal initiatives to cut food waste and the growing national consensus on the important role for anaerobic digestion in reducing food waste. This Note argues that in the
absence of a national food waste recycling ban, Public Act 13-285 provides an innovative solution that both reduces food waste and promotes Connecticut’s anaerobic digestion industry. Connecticut’s law, however, may be vulnerable to challenge under the Dormant Commerce Clause, which protects the belief that one state in its dealings with another may not
place itself in a position of economic isolation. This Note further argues that the Dormant Commerce Clause should show deference to state experimentation on the issue of food waste reduction given the role states play as innovators and guardians of the environment.

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50, Issue 3

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