Originalism and economic analysis: Two case studies of consistency and coherence in supreme court decision making

Harvard Journal of Law and Public Policy

Volumn 33, Issue 1, 2010, Pages 217-238

  Ginsburg, Douglas H ^a  

^a United States Court of Appeals for the District of Columbia Circuit ^*  (United States)

Author keywords

[No Author keywords available]

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EID: 78049257362     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (84)

1. See JEROME FRANK, LAW AND THE MODERN MIND 34 (1930).
2. See Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L. REV. 431, 432 n.9 (2005);
3. Edward Lazarus, Roper v. Simmons: Insights from the Perspective of Justice Blackmun's Former Law Clerk, 82 DENV. U. L. REV. 723, 724 n.5 (2005).
4. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 344 (1962) ("[W]e cannot fail to recognize Congress' desire to promote competition through the protection of viable, small, locally owned businesses. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization.");
5. United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 324 (1897) ("[I]t is not for the real prosperity of any country that such changes should occur which result in transferring an independent business man, the head of his establishment, small though it might be, into a mere servant or agent of a corporation for selling the commodities which he once manufactured or dealt in, having no voice in shaping the business policy of the company and bound to obey orders issued by others.").
6. United States v. Aluminum Co. of Am., 148 F.2d 416, 428-29 (2d Cir. 1945).
7. See generally INDUSTRIAL CONCENTRATION: THE NEW LEARNING (Harvey J. Goldschmid, H. Michael Mann & J. Fred Weston eds., 1974).
8. Trans-Missouri, 166 U.S. at 323.
9. For the data underlying Figures 1-4, see Leah Brannon & Douglas H. Ginsburg, Antitrust Decisions of the U.S. Supreme Court, 1967 to 2007, COMPETITION POL'Y INT'L, Autumn 2007, at 3, 13-21.
10. See Robert H. Bork, Legislative Intent and the Policy of the Sherman Act, 9 J.L. & ECON. 7, 10-11 (1966) [hereinafter Bork, Legislative Intent];
11. Douglas H. Ginsburg, An Introduction to Bork (1966), 1 COMPETITION POL'Y INT'L 225 (2006);
12. see also ROBERT H. BORK, THE ANTITRUST PARADOX: A POLICY AT WAR WITH ITSELF 50-51 (1978) [hereinafter BORK, ANTITRUST].
13. See NCAA v. Bd. of Regents, 468 U.S. 85, 107 (1984) ("Congress designed the Sherman Act as a consumer welfare prescription. A restraint that has the effect of reducing the importance of consumer preference in setting price and output is not consistent with this fundamental goal of antitrust law." (citation omitted) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979)) (internal quotation marks omitted));
14. Reiter, 442 U.S. at 343 (noting legislative history "suggests] that Congress designed the Sherman Act as a 'consumer welfare prescription'" (quoting BORK, ANTITRUST, supra note 8, at 66));
15. see also GTE Sylvania Inc. v. Cont'l T.V., Inc., 537 F.2d 980, 1003 (9th Cir. 1976) (en banc), aff'd, 433 U.S. 36 (1977) ("Since the legislative intent underlying the Sherman Act had as its goal the promotion of consumer welfare, we decline blindly to condemn a business practice as illegal per se because it imposes a partial, though perhaps reasonable, limitation on intrabrand competition, when there is a significant possibility that its overall effect is to promote competition between brands." (citing Bork, Legislative Intent, supra note 8, at 11)).
16. RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 364 (1977).
17. Edwin Meese, III, The Supreme Court of The United States: Bulwark of a Limited Constitution, 17 S. TEX. L. REV. 455, 464 (1986) (emphasis omitted).
18. See ANTONIN SCALIA, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 38 (1997).
19. Data based on a search of the titles of articles in Westlaw's U.S. Law Reviews and Journals database using the following search: (original /2 intent) (original /2 understanding) (original/2 meaning) (originali!).
20. William J. Brennan, Jr., Speech to the Text and Teaching Symposium, in ORIGINALISM: A QUARTER-CENTURY OF DEBATE 55, 61 (Steven G. Calabresi ed., 2007).
21. Data based upon searches of the Westlaw database-limited to constitutional law key numbers, excluding the key numbers for Fourteenth Amendment due process and equal protection issues-for citations to The Federalist Papers, Elliot's Debates in the Several State Conventions on the Adoption of the Federal Constitution, Farrand's Records of the Federal Convention of 1787, Blackstone, and prominent founding-era dictionaries. Some search terms were suggested by a research project undertaken for the book Originalism: A Quarter-Century of Debate by Steven Calabresi. See Report on the Growth of Originalism in Federal Judicial Opinions and Legal Scholarship (Jan. 8, 2007) (unpublished manuscript, on file with author).
22. 128 S. Ct. 2783 (2008).
23. Compare Id. at 2788, with
24. Id. at 2822 (Stevens, J., dissenting).
25. See Id. at 2791-93 (majority opinion) (citing founding-era laws);
26. Id. at 2791, 2793 (citing founding-era dictionaries);
27. Id. at 2793 (citing Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 TEX. REV. L. & POL. 191 (2006));
28. Id. at 2795 (citing Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 TEX. L. REV. 237, 261 (2004) (book review));
29. Id. at 2798 (citing JOYCE LEE MALCOLM, To KEEP AND BEAR ARMS 31-53 (1994)).
30. See Id. at 2824-25, 2830 (Stevens, J., dissenting) (citing founding-era laws);
31. Id. at 2828 (citing founding-era dictionaries).
32. See 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 898 n.213, 901 n.221 (3d ed. 2000). Professor Sanford Levinson of the University of Texas School of Law, recognizing how stubborn is the text of the Amendment,
33. wrote The Embarrassing Second Amendment, 99 YALE L.J. 637 (1989).
34. 307 U.S. 174 (1939).
35. Heller, 128 S. Ct. at 2815.
36. U.S. CONST, amend. X.
37. 456 U.S. 742 (1982).
38. Id. at 791 (O'Connor, J., concurring in the judgment in part and dissenting in part).
39. Id. at 767 n.30 (majority opinion).
40. Id. at 761 n.25.
41. See Id. (citing United Transp. Union v. Long Island R.R. Co., 455 U.S. 678 (1982);
42. Fry v. United States, 421 U.S. 542 (1975);
43. Parden v. Terminal Ry., 377 U.S. 184 (1964);
44. California v. Taylor, 353 U.S. 553 (1957);
45. Case v. Bowles, 327 U.S. 92 (1946);
46. and United States v. California, 297 U.S. 175 (1936)).
47. 505 U.S. 144 (1992).
48. Id. at 166.
49. Id. at 207 n.3 (White, J., concurring in part and dissenting in part).
50. 521 U.S. 898, 905 (1997).
51. Id. at 971 (Souter, J., dissenting) ("In deciding these cases, which I have found closer than I had anticipated, it is The Federalist that finally determines my position. I believe that the most straightforward reading of No. 27 is authority for the Government's position here, and that this reading is both supported by No. 44 and consistent with Nos. 36 and 45.").
52. 491 U.S. 1 (1989).
53. Id. at 20 (plurality opinion).
54. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
55. Id. at 19-20.
56. 527 U.S. 706, 728 (1999).
57. See Id. at 760-61 (Souter, J., dissenting);
58. Seminole Tribe v. Florida, 517 U.S. 44, 100 (1996) (Souter, J., dissenting).
59. U.S. CONST, amend. VI ("In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him....").
60. 527 U.S. 116, 140 (1999) (Breyer, J., concurring) (citation omitted).
61. 541 U.S. 36, 60 (2004).
62. Id. at 51.
63. 530 U.S. 466 (2000).
64. Id. at 490.
65. Id. at 518 (Thomas, J., concurring).
66. 330 U.S. 1 (1947) (holding New Jersey could constitutionally fund student transportation to and from private sectarian as well as public schools).
67. 472 U.S. 38 (1985).
68. Id. at 107 (Rehnquist, J., dissenting).
69. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding publicly funded tuition vouchers to parents for use at public or private schools, including religious schools).
70. 515 U.S. 819, 845-46 (1995).
71. Id. at 868-69 (Souter, J., dissenting).
72. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring in the judgment).
73. 545 U.S. 677, 686 (2005) (quoting Hunt v. McNair, 413 U.S. 734, 741 (1973)).
74. 28 U.S.C. § 1350 (2006).
75. 630 F.2d 876 (2d Cir. 1980).
76. Id. at 878-79.
77. Filartiga v. Pena-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984).
78. IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (citation omitted).
79. 542 U.S. 692, 714-15 (2004).
80. Id. at 724.
81. Id. at 725.
82. Id. at 739 (Scalia, J., concurring in part and concurring in the judgment) ("There is not much that I would add to the Court's detailed opinion, and only one thing that I would subtract: its reservation of a discretionary power in the Federal Judiciary to create causes of action for the enforcement of international-law-based norms.").
83. Stuart Taylor Jr., Is Judicial Review Obsolete?, NAT'L J., July 5, 2008, at 10, 10.
84. See, e.g., Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992).