Professor Seth Chandler on the Network Structure of Case Law

Professor Seth Chandler of the University of Houston has posted a remarkable paper on SSRN dealing with the Network Structure of Supreme Court Jurisprudence (again through LegalTheoryBlog; I'm just passing on the news!). Here's an abstract from the abstract:

In common law jurisdictions such as the United States, courts frequently resolve disputes by citation and analysis of reports of prior legal cases. The law may thus be thought of as a giant network containing textual information embedded in cases (nodes) and relationship information called citations (arcs) going from node to node. In recent years, the science of studying networks has developed and, while there had been some rudimentary attempts to look at subsets of the vast legal network, until recently there had been little done to take advantage of modern technology and modern network theory in that effort.

The paper shows that fascinating results are to be found applying these new technologies and theories to case law; results that clearly beg for comparative analysis across jurisdictions. There are various measurements available, each of which covers different aspects of the network characteristics of case law. A first indicator is the relative frequency of citation of cases. Here the analysis comes up with, as the author says, a fairly predictable list of famous cases (Professor Chandler acknowledges the work of Thomas Smith - San Diego - who, in his paper The Web of Law, has found, for example, that 2% of the USSC's decisions make up for 96% of its case citations). The paper then goes on to determine the centrality of cases, based on their 'connectedness', their 'betweenness' and on whether they form part of a 'main core' of Supreme Court jurisprudence. 'Connectedness' is expressed as the 'distance' between cases, measured as the number of steps through citations required to get from any one decision to the specified case). 'In betweenness' of cases is based on the frequency a decision appears on citation-trajectories between other cases. The final mode of analysis looks for the 'main core' of Supreme Court jurisprudence, consisting of a group of cases with a certain minimum number of connections to other cases within in the same group).

Based on these various measurements, the author concludes that 'structural cases' "involving the role of the federal courts" figure at the core of the Supreme Court's case law in that they lie extremely close to other decisions. The density of connections between decisions is very high in free speech and assocation cases. This would mean that in this area "reinterpretations of a particular case are likely to reverberate significantly" throughout the system.

Highly recommended. Watch for further results from Houston!

Seth J. Chandler

The Network Structure of Supreme Court Jurisprudence

Document: Available through SSRN

Professor Vivian Curran on "Re-Membering Law"

I'm reading a new paper by professor Vivian Curran, entitled "Re-Membering Law in the Internationalizing World". It's about the issues arising from the pervasive interaction of legal communities, specifically within the context of the EU and the ECHR. Central to the article is a study on the sort of legal translations at work when a case - here Pretty v. UK - first travels from a domestic legal order to the ECHR system and then is reported back to the legal orders of (other) Member States. So far it's absolutely fascinating, and I'm hoping to post some thoughts and questions later this week. For now, here's the abstract and some quotes.

Abstract:

This article examines some of the challenges to understanding new, non-national legal configurations as contexts of origin color understandings and evaluations of legal standards allegedly shared across legal communities. It examines a case on assisted suicide, Pretty v. U.K., decided by the European Court of Human Rights. The case illustrates mechanisms of legal integration in the European court, followed by a process of dis-integration that occurred when the decision was reported to the French legal community. The French rendition reflected a legal community’s inability to process common law information through civil law cognitive grids. The article addresses both the capacity of law to internationalize, and the sorts of comparative inquiries necessary to perceiving what lurks unseen, as the world experiences superimposed legal norms and claims, some mutually contradictory. It also discusses the peculiar relation of past to present in the establishment, evolution and transformation of legal significance. The European court engaged in decision-making affected by unspoken associations with the Nazi past that collided with the needs of a society transformed by modern medical technology. The “remembering” of law that this article addresses thus involves (1) recompositions of law as it increasingly ignores old borders and categories; and (2) the ongoing need to examine law’s past meanings in order to understand its present incarnations and, most importantly, to imagine its potentials in our time of flux and of increasingly complex and elusive non-national legal constructs.

And some quotes:

-On legal integration and faulty translations: "A hidden layer beneath apparent legal integration reflects resistance to the new that is not willful, but results from classifications and categorizations that reprocess the non-national through categories incapable of absorbing the new because the categories themselves have not been altered so as to have the capacity to admit the new" (on p. 11-12)

-On the aptly named 'civilianization of case law': "The application of a precedent to a future dissimilar case is a reinsertion of the civil law tradition into what is being called a common law respect for case law" (on p. 15)

Vivian Grosswald Curran
Re-Membering Law in the Internationalizing World
University of Pittsburgh School of Law Working Paper Series, No. 18/2005
Document: Available through Bepress

Rosenfeld on Judicial Balancing in Times of Stress

Legal Theory Blog (see sidebar) notified publication of this paper by professor Michel Rosenfeld of Cardozo Law School, entitled "Judicial Balancing in Times of Stress: Comparing Diverse Approaches to the War on Terror". As I'm a big fan of comparative analyses of judicial 'tests' in context, here's the abstract:

This article explores the proper role of judicial balancing in cases arising out of the war on terror. The relevant cases have all relied on judicial balancing in spite of criticism suggesting that in relation to the war on terror the judicial role should be minimized or confined to application of preestablished categorical standards. The article advances the thesis that judicial balancing is appropriate and indispensable in this context, but that it has thus far not been used properly. This is because existing cases fail to distinguish between states of emergency and conditions of stress and seem caught between a criminal law paradigm,a law of war paradigm and a police powers law paradigm. After comparing recent decisions of the U.S. Supreme Court, the U.K. Law Lords and the Israeli Supreme Court, the article suggests that judicial balancing combined with a process-based institutional approach could be optimal, provided it is circumscribed by a conception of the war on terror as creating conditions of stress and a new hybrid legal paradigm, the war on terror law paradigm.

Michel Rosenfeld

Judicial Balancing in Times of Stress: Comparing Diverse Approaches to the War on Terror

Cardozo Legal Studies Research Paper, no. 119

Available through SSRN

Granholm v. Heald under EU Law - Guest Post

My good friend Felix Ronkes Agerbeek, legal secretary at the ECJ, had this to say about the way the issues in Granholm v. Heald would be treated under EU Law. This appears as a comment on my own post on the judgment of May 18th (see the archives). Naturally, the comment merely states his personal views and does not in any way represent the opinion of the Court or any of its members. Look forward to more guest posts from Felix!

The ECJ has regularly been confronted with national laws that have elements in common with the New York & Michigan regulatory schemes, although the discriminatory nature of those laws was usually less flagrant. I am not sufficiently familiar with US commerce clause case-law to really offer a comparative EU/US analysis, but as a stepping stone for those who want to make the actual comparison, here is an overview of ECJ case-law which is likely to be of interest...

Under EU law, a scheme that would only permit national wineries to directly ship alcohol to consumers but would limit other wineries to do so would be seen as a restriction of a ‘selling arrangement’ which does not ‘affect in the same manner … the marketing of domestic products and of those from other Member States’ (C-267/91 and C-268/91 Keck and Mithouard, §16). That type of restrictions comes within the scope of Article 28 EC. Indeed, the ‘in-state presence requirement’ in Heimdienst (C-254/98) is a good example. The ECJ regarded it as a restriction of a selling arrangement that was caught by Article 28 EC because it resulted in additional costs for goods from other Member States (§ 24-26). A difference with the New York regulation seems to be that the Austrian rule required a permanent establishment in an administrative district or in an adjacent municipality. As a consequence, the rule also hurt national operators who wanted to sell their goods door-to-door in another district; meanwhile it allowed door-to-door selling by operators who where established in an adjacent municipality in another Member State. (In fact, the company that had allegedly infringed the rule was established in Austria and the ECJ’s jurisdiction had been unsuccessfully challenged on the ground that there was no cross-border element; compare C-321/94 Pistre and Others and Case C-448/98 Guimont). Even so, the ECJ held the Austrian rule to be a discriminatory hindrance to intra-Community trade, because it impeded market access for products from other Member States more than it impeded market access for domestic products (§ 29).
Another judgment worth mentioning – one from the pre-Keck era – is the one in Gyselinx (87 and 88/85) about the sales of medicinal products in Luxembourg. Suppliers could only sell through wholesalers established in Luxembourg. If they wanted to sell directly to pharmacies they had to have authorized premises in Luxembourg suitable for the storage of medicines. Here too the rule in principle applied to any supplier, whether national or foreign, but the ECJ held that it ‘in fact penalize[d]’ traders from other Member States (§16).
Deutscher Apothekerverband (C-322/01) concerned German legislation prohibiting the direct sale of medicines by pharmacies over the internet. Again, the prohibition affected German and other pharmacies, but the ECJ held that it had a greater impact on pharmacies from other Member States, because ‘for pharmacies not established in Germany, the internet provides a more significant way to gain direct access to the German market’ (§74).
Restrictions on sales channels or sales methods aren’t always considered more burdensome for ‘out-of-state’ traders who seek market access than for national traders. This is illustrated by the recent judgment in Burmanjer (C-20/03), regarding a Belgian law under which prior authorization is required for the itinerant sale of subscriptions to periodicals. It has been left for the national court to assess if the law affects the marketing of Belgian periodicals to a lesser degree than the marketing of periodicals from other Member States, but the ECJ – unlike AG Léger – did not seem very convinced. It indicated that, even if the law made the marketing of foreign products more difficult that the marketing of domestic products, the effect appeared to be too insignificant or uncertain to be regarded as an interference with trade between Member States (§29-31; AG Jacobs discussed the use of a ‘de minimis test’ in Article 28 EC in some of his Opinions – e.g. in C-412/03 Leclerc-Siplec at §42 and in C-112/00 Schmidberger at §65 with further references).
When domestic and foreign products are equally affected by a national rule restricting a selling arrangement, the rule remains out of the reach of Article 28 EC (but other provisions may apply, see e.g. C-71/02 Karner; whether assessment under a different free movement principle would lead to a different outcome is a matter of debate – note e.g. that AG Léger thought Burmanjer ought to be reviewed under Article 49 EC).
When a restriction of a selling arrangement forms a greater impediment to market access for foreign products than for domestic products it is not prohibited automatically, but it will be submitted to a balance test. The restrictions in Heimdienst and Gyselinx failed the balance test. Strictly speaking there was no balance test in Heimdienst because Austria did not have a valid justification (the rule aimed to support local business). In Deutscher Apothekerverband Germany argued that the prohibition of direct mail-order sales was justified on grounds of public health. The ECJ accepted that argument in respect of prescription-medicines, but not in respect of non-prescription medicines (§111 and following).
A case where the ECJ had to balance the interest of limiting alcohol consumption with the principle of free movement of goods is Franzén (C-189/95). Franzén fits in the unusual category of cases on statutory monopolies – so a special treaty provision comes into play: Article 31 EC (see also recently C-438/02 Hanner). Franzén concerns the Swedish monopoly on the import and retail of alcoholic drinks (the ‘Systembolaget’). The ECJ assessed the rules on import licensing under Article 28 EC and the rules on the functioning of the retail monopoly under Article 31 EC. The retail monopoly was upheld (it was considered non-discriminatory) but the import licensing scheme did not survive the balance test. The Finnish counterpart to the Systembolaget was examined by the EFTA-Court in case E-1/94 (see www.eftacourt.lu). New questions in connection with the Systembolaget were referred to the ECJ in the pending case of Rosengren (C-170/04). They arose in Swedish criminal proceedings on account of the import (without a license) of several boxes of Spanish wine which were ordered through a Danish website.

(More on) Comparative Law at the US Supreme Court

More contributions to the debate on the use of comparative law in constitutional cases at the US Supreme Court, via ListlessLawyer (see sidebar). One is an excellent article by professor Kenneth Anderson in the current issue of Policy Review on justifications for the use of foreign decisions. One especially interesting observation he offers is that the debate between the Justices (Scalia vs. Breyer, Kennedy and several others) has sofar taken place mostly on the level of theories of judicial decisonmaking, eshewing larger debates on sovereignty within political theory. The second is this paper on SSRN, which I have not yet read, by Eugene Kontorovich of the University of Chicago School of Law. This is from the abstract:

The oft-made argument that Declaration supports American judges looking to foreign law is based on lifting the relevant passage from its textual and historical context. In fact, the Declaration does not remotely suggest that Americans should follow or adopt the “opinions of mankind.” To the contrary, it shows that we should follow our own opinions, even when they diverge from the dominant views of Europe. Indeed, throwing off the rule of a sovereign monarch contradicted the dominant opinion of mankind. Thus the Declaration takes the view that all we owe to other nations is to explain our actions to them.

Now this last phrase is interesting. Kontorovich probably provides an answer in his paper, but I really wonder what, specifically, a duty to explain decisions to foreign nations could be based on. And if the US 'owes' such an explanation, do we Europeans have 'a right' to them?

Justice, 50 years late

Have a look here for an excellent Guardian article on the reopening of the case on the murder of Emmett Till; a black boy murdered in Missippi in 1955, whose white killers were acquitted by an all white jury. As Gary Younge writes, one of the defendants' laywer told the jury: "Your fathers will turn over in their graves [if Milam and Bryant are found guilty] and I'm sure that every last Anglo-Saxon one of you has the courage to free these men in the face of that [outside] pressure." It took the jury just 67 minutes to return a not-guilty verdict. One of the jurors said they would have returned earlier if they had not stopped for a soda." (See also the NY Times here). Notice that the murder and the trial took place after Brown v. Board of Education had banned segregation in schools. Then, the sheer brutality of the murder, and open role of racism in the trial made the case to be one of the very first to be extensively reported in the Northern States (see also Robert Caro's book, referred to earlier in my post on filibusters). As such, it galvanized support for the early civil rights movement. Today, the case is a tragic reminder of the contrast between civil rights at the Supreme Court and 'on the ground' in the Southern States. Justice - some? perhaps? - 50 years late. But at the same time; all of this happened only 50 years ago.

SCOTUS, Balkinization and Political Theory Daily Review

I've added a few links about which I'm very enthusiastic to the sidebar.

(The sidebar, incidentally, now temporarily follows a bad bad western-centric setup; this'll change in the near future, I promise)

SCOTUSBlog, maintained by the American lawfirm of Goldstein & Howe gives an extremely detailed overview of US Supreme Court affairs, including commentaries by the bloggers themselves and links to an impressive number of US media and academic commentaries that cover the Supreme Court. Highly recommended.

Balkinization is the weblog of several American law professors including Jack Balkin, Ian Ayres and Mark Tushnet. Great stuff (for a recent example, have a look at professor Tushnet's post on Tribe's Treatise on Constitutional law here).

Political Theory Daily Review offers updates and links on the widest selection of newsmedia and academic publications in the broad field of political theory (including many legal topics) of all the sites that I've come across. Very useful.

Court in UK Rejects Tobacco Claim in Landmark Case

The Scottish Court of Session has rejected a claim against a tobacco company for damages arising from smoking in the first such case to be fully heard by a court in the United Kingdom, the Guardian reports. In the case of McTear v. Imperial Tobacco, Lord Nimmo Smith held "Mr McTear was aware, in common with the general public, well before 1971 [the year health warnings were introduced, JB] of the publicity about the health risks associated with smoking. "By the time he is shown ... to have started smoking [the defendant's, JB] brand of cigarettes, he was already aware of the publicity about the health risks. As with many other aspects of his life, he chose to ignore it." Now that sounds a bit harsh, doesn't it? Here are a few extracts from the rather long judgment (available in full here).

On the issue of general causation (whether smoking can cause cancer):

[6.171]… “approaching the evidence with an open mind, as I am bound to do, and applying the law relating to expert evidence, I am unable to find it proved that cigarette smoking can cause lung cancer.

On the issue of individual causation (whether Mr. McTear's cancer was caused by smoking the defendant's cigarettes):

[6.184] The problem ultimately is that, as was demonstrated by the evidence, in the state of modern science there is no way of telling whether in an individual case, such as that of Mr McTear, a lung cancer was caused by cigarette smoking. Still less is there any way of telling whether a smoker who has contracted lung cancer has in fact contracted it as a result of some cause other than smoking, or would not in any event have gone on to contract lung cancer even if he had not been a smoker. This last point is necessarily so, when there are risk factors other than smoking which have been identified as being associated with lung cancer, and when on any view of the matter about 10% of cases of lung cancer are found in non-smokers. The fallacy of applying statistical probability to individual causation has already been recognised judicially, in the passage from the opinion of Lord Mackay of Clashfern in Hotson v East Berkshire Area Health Authority quoted at para.[6.28].

On the issue of negligence (the defendant's alleged failure to take reasonable care):

[7.179] At the centre of my thinking is the individualist philosophy of the common law, described by Lord Hoffmann in Tomlinson v Congleton Borough Council, in the passage quoted at para.[7.46]. As he said, people of full age and sound understanding must look after themselves and take responsibility for their actions. There is no duty to save people from themselves. If they are, or may reasonably be supposed to be, in possession of information about harm which they may suffer if they choose to follow a particular course of action, the responsibility is theirs alone.

I'll be looking out for comparative analyses of this decision and earlier American judgments. Oh, and BTW: Imperial Tobacco's shares rose 2% after the judgment.

For more information on Scottish law and the Scottish legal system, have a look here.