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The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

Predicting the Winners in Kansas v. Nebraska and N.C. Board of Dental Examiners v. FTC

The Supreme Court heard oral argument in two cases on Tuesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Kansas v. Nebraska and Colorado asks what relief is appropriate to remedy the violation by Nebraska of a compact apportioning the waters of the Republican River between Kansas, Nebraska, and Colorado. The Court has original jurisdiction over the case involving three states and will review the special master’s report and award of remedies.

This is an unusual case involving the Court exercising original jurisdiction. It’s a tough case to call simply based on the question count. Plaintiff Kansas received a few more questions (38) than Defendants Nebraska and Colorado (32), which suggests that the Kansas will lose in its attempt to convince the Court that injunctive relief is warranted, as well as more significant disgorgement.

However, the Defendants’ position may not necessary prevail, either. In prior cases, the Court has tended to side with the Solicitor General’s position. In this case, the SG supported the special master’s report and issuance of partial disgorgement, but no injunctive relief. The SG’s attorney received 22 questions, although it’s not clear how much time was allotted. Based on both the question count and the Supreme Court’s tendency of adopting the SG’s position in prior cases, my prediction in this case is that the Supreme Court will follow the SG’s position.

Figure 1.

Lee 10.14.14 Kansas v Nebraska questions

The second case, North Carolina Board of Dental Examiners v. Federal Trade Commission, asks whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.

My prediction is that the Court will side with Respondent FTC’s position (i.e., that the Fourth Circuit correctly upheld the FTC’s determination that the state-action doctrine did not exempt the Petitioner’s conduct from federal antitrust scrutiny). The Petitioner North Carolina Board of Dental Examiners received nine more questions than the Respondent FTC, which suggests a win for the FTC.

Figure 2.

Lee 10.14.14 NC Board of Dental Examiners questions

 

Recapping the Opening Week at the Supreme Court, October Term 2014

It has been a remarkably exciting opening week of the new Term at the Supreme Court. The biggest news came right at the opening “Oyez.” With most Court watchers confidently predicting that this was going to be the term when the justices squarely faced the constitutionality of same-sex marriage bans, the justices announced at 9:30 am on Monday morning that they were going to take a different approach. The Court denied review of the seven pending same-sex marriage cases. Since each of these cases involved federal appeals court decisions that had recognized a constitutional right to same-sex marriage, the effect of this monumental decision not to decide was to strike down same-sex marriage bans in a large swath of the country.

This non-decision amounted to the strongest signal the Court has given to this point that a majority of the justices believe the Constitution prohibits states from prohibiting same-sex marriage. It also brings same-sex marriage to states in which there is considerable opposition to same-sex marriage. Prior to this point, state legislatures and courts had legalized same-sex marriage in 19 states. After Monday’s Court order, the number has reached 24 and, counting all the states covered by the three federal circuits affected by Monday’s order, will soon reach 30 states. Many of these newly added states have strong conservative leanings. In response, some of the affected states have given up the fight against same-sex marriage, while others are vowing to fight on. Then, on Tuesday, the U.S. Court of Appeals for the Ninth Circuit struck down prohibitions on same-sex marriage in Idaho and Nevada. As a result, the total number of states in which same-sex couples have or will likely soon have the right to marry is now at 34.

Tuesday’s Ninth Circuit decision led to some interesting events, including some embarrassment, at the Supreme Court. Idaho immediately filed at the Supreme Court a request for a stay, which Justice Kennedy—as the Justice responsible for these kinds of requests from the Ninth Circuit—granted. This pro forma decision had the effect of temporarily halting the granting of marriage licenses to same-sex couples in Idaho. Granting a stay in this situation is standard practice for the Court, and, in light of Monday’s actions, it will likely only prove a temporary delay in Idaho’s acceptance of same-sex marriage. This was not the end of the story, however. An apparent mix-up at the Court resulted in the stay being applied to Nevada as well, despite the fact that Nevada had not requested a stay and was already starting to issue marriage licenses to same-sex couples. The Court quickly fixed the mistake, but not before Nevada halted issuing marriage licenses to same-sex couples for a day.

The other big issue that the Court has been dealing with this week is voting rights. Partly in response to the Court’s 2013 decision in Shelby County, in which the Court struck down a key section of the Voting Rights Act of 1965, various states have passed new voting regulations. With a new round of elections looming, legal challenges to these regulations have been working their way through the courts at high speed, and the Supreme Court has weighed in on several of them. On Wednesday, the Court issued an unsigned order that put back into effect certain voting regulations that North Carolina had implemented but that a federal appeals court had blocked. The court found that the regulations, which prohibited same-day registration and the counting of votes cast in the wrong precinct, disproportionately harmed African American voters. Dissenting from the Court’s order were Justices Ginsburg and Sotomayor. On Thursday, the Court came out the other way in a challenge out of Wisconsin, blocking a photo-identification requirement the state recently passed. Other cases are still pending review at the Court.

The Court was also hearing arguments in some interesting cases this week. On Tuesday, the Court heard arguments in a religious freedom case involving a man serving a life sentence in an Arkansas prison who wants to grow a beard. (See my summary of the case here.) Oral arguments seemed to be strongly in favor of the prisoner’s claim.

On Wednesday, the Court considered the question of whether the time that retail or warehouse employees spend going through security checks must be recognized as time on the clock. If so, the employees may be due overtime pay. The businesses countered that this time is analogous to the time an employee spends commuting to work, and therefore is not part of the paid workday. Although a rather dry, technical question, the resolution of this issue has huge financial consequences for large businesses like Amazon that routinely require employees to stand in security checks at the end of the day—sometimes for as long as 25 minutes—to prevent theft of merchandise.

The Court on Wednesday also considered a case about whether jurors should be allowed to testify about their deliberations. Adam Liptak reported in the New York Times that oral arguments in the case were unusually one-sided, with the lawyer arguing that juror testimony should not be allowed receiving almost no questions.

So there you have it—an historic opening week to the Supreme Court Term. Onward.

Predicting the Winners in Integrity Staffing Solutions v. Busk and Warger v. Shauers

The Supreme Court heard oral argument in two cases on Wednesday, October 8, in the first week of the October 2014 Term. As I hope to do all Term, I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. It’s well established that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Integrity Staffing Solutions, Inc. v. Busk presents the question whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act. My prediction is that the Petitioner Integrity Staffing Solutions will win. The Respondent Busk received almost twice as many questions as the Petitioner (51 to 27 questions), and 11 more questions than even the total number of questions for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Integrity Staffing Solutions (which argued that the time spent in security screenings is not compensable under the FLSA).

Figure 1.

Lee - 10.8.14 Integrity Staffing v Busk questions

The second case, Warger v. Shauers, raises the issue whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.

This is an easy case to predict, given the large disparity in the number of questions asked to the parties. The Petitioner Warger received more than twice as many questions than the Respondent and U.S. Solicitor General (who supported the Respondent’s position) combined (31 to 13 questions). The attorney for the Solicitor General’s Office in fact received no questions at all—a rarity during oral arguments. The huge disparity in the number of questions points to a victory for the Respondent Shauers (who argued that Rule 606(b) precludes evidence of juror testimony about statements made during jury deliberations even if it relates to juror dishonesty).

Figure 2.

Lee - 10.8.14 Warger v Shauers questions

Predicting the Winners in Holt v. Hobbs and Dart Cherokee Co. v. Owens

The Supreme Court heard oral argument in two cases on October 7, 2014. I’m predicting the winners of the cases based on the method of question counting—i.e., the advocate that receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

The first case may be too close to call. In Dart Cherokee Basin Operating Company, LLC v. Owens, the Court considered whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement of the grounds for removal.” The Petitioner Dart Cherokee received 48 questions, three fewer than the Respondent Owens, who received 51 questions. The total question count is favorable to the Petitioner. But if you look at the questions per Justice, five of the Justices (Roberts, Scalia, Kennedy, Sotomayor, and Kagan) asked more questions to the Petitioner. Three other Justices (Ginsburg, Breyer, and Alito) asked more questions to the Respondent.   The individual question count by Justice might suggest a favorable outcome for the Respondent. This case is a toss-up.

Figure 1.

Lee - 10.8.14 Dart Cherokee v Owens questions

The second case is easier to predict. In Holt v. Hobbs, the Court considered whether the Arkansas Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs. The Respondent Hobbs, Director of the Arkansas Department of Corrections, received twice as many questions (52) as the Petitioner (23)—and seven more questions than the total number for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Holt.

Figure 2.

Lee - 10.8.14 Holt v Hobbs questions

Heien v. North Carolina—Predicting the Winner Based on the Oral Argument

[Reposted from IIT Chicago-Kent Faculty Blog]

The Supreme Court opened its October 2014 Term by hearing oral argument in Heien v. North Carolina, which raises the question: Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop?

I am using the same method of predicting the winner of the case that I have used before, which is based simply on the total number of questions each party receives. Other scholars have shown that the more questions an advocate receives during oral argument before the Supreme Court, the more likely the advocate will lose the case. For more about this method, see my post on last Term’s Aereo case.

Figure 1.

Lee - 10.6.14 Heien v North Carolina questions

In this case, we have the confounding factor of the Solicitor General’s participation on the side of the Respondent. The participation of the SG is confounding in two respects: (1) it decreases the time the party whose side it supports has during the oral argument (usually by 10 minutes), thus decreasing the time the party is questioned and increasing the likelihood the party will receive fewer questions than the opposing party, who is questioned for the full 30 minutes; and (2) the Supreme Court often ends up agreeing with the side that the SG supports.

I also should mention that I am not an expert in Fourth Amendment law and have not studied the Court’s jurisprudence in this area (at least not since law school).

With those caveats in mind, my prediction is that the Supreme Court will side with the State of North Carolina, which received eleven fewer questions than the Petitioner. However, the disparity of questions between both parties is not large, so my confidence level in the prediction is not very great. From my analysis of last year’s IP cases, the predictive value of the question-counting method appeared to work best when the disparity of questions between the parties was great (excluding the SG’s participation). If we calculate the questions asked per minute to each party, the Respondent North Carolina actually had the higher rate of questioning (1.55 questions per minute versus 1.4 questions per minute for the Petitioner).

As the Term progresses, I hope to refine the method, especially in cases in which the SG participates. But for now, my prediction in this case will be for North Carolina.