The Role of Precedent at Japan's Supreme Court

PATENTLY NON-OBVIOUS II: EXPERIMENTAL STUDY ON THE HINDSIGHT ISSUE BEFORE THE SUPREME COURT IN KSR v. TELEFLEX

For the first time in thirty years, the Supreme Court will consider the core patent requirement that an invention be non-obvious. At the heart of the case lies the challenge of how to insulate non-obvious decisions from the distortion of the hindsight bias. This Article reports the latest empirical studies in a line of hindsight research, which present experimental data bearing directly on the ...

Has Precedent Ever Really Mattered in the Supreme Court?

Narrowing Supreme Court Precedent from Below

Lower courts supposedly follow Supreme Court precedent—but they often don’t. Instead of adhering to the most persuasive interpretations of the Court’s opinions, lower courts often adopt narrower readings. For example, recent courts of appeals’ decisions have narrowly interpreted the Court’s rulings on police searches, gun control, and campaign finance. This practice—which I call “narrowing from...

Constitutional Precedent of Amicus Briefs

We investigate shared language between U.S. Supreme Court majority opinions and interest groups’ corresponding amicus briefs. Specifically, we evaluate whether language that originated in an amicus brief acquired legal precedent status by being cited in the Court’s opinion. Using plagiarism detection software, automated querying of a large legal database, and manual analysis, we establish seven...

The authority of Supreme Court precedent

We construct the complete network of 30,288 majority opinions written by the U.S. Supreme Court and the cases they cite from 1754 to 2002 in he United States Reports. Data from this network demonstrates quantitatively the evolution of the norm of stare decisis in the 19th Century and significant deviation from this norm by the activist Warren Court. We further describe a method for creating aut...