Affirmation Bias? Supreme Court Decision-Making in the Circuit-Riding Century

Abstract: This article quantitatively analyzes the effect of circuit riding on judicial decision-making, particularly affirmation rates. From 1790 to 1891, the Supreme Court Justices served as circuit judges as well as Justices, a system that allowed for the possibility of the Justices reviewing their own circuit opinions on appeal to the Supreme Court. Despite encapsulating the formative period of the Court, the “Circuit-Riding Century” is understudied in the literature, and there is a dearth of materials relating to the practice. I introduce three theoretical explanations for the effect of circuit riding on Supreme Court affirmation rates: the circuit Justice’s fear of reversal by his brethren, protecting the legitimacy of the Court, and the circuit Justice as an advocate. All three explanations lead to the same hypothesis: cases heard by Justices on circuit were more likely to be affirmed by the Supreme Court than cases that do not feature a Justice. In order to test my hypothesis, I constructed two groups, the experiment group (containing cases heard by Justices on the circuit level) and the control group (consisting of cases from state courts and the D.C. Circuit, which did not have a Justice assigned) in order to do a Welch’s t-test on the difference of affirmation rates between the two groups. I then used three case studies to elucidate my theoretical explanations. Though the difference between affirmation rates is not statistically significant, this thesis is the first study to provide a concrete, positive answer to the speculated effect of circuit riding on Supreme Court decision-making.

Author: Will Giles graduated from Duke University in 2015 with a B.A. in Political Science.

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Tax Avoidance Law: Finding the Supreme Court’s Role in Uncertainty

Abstract: In 2014, a practice where U.S.-based corporations enter complex income shifting transactions to avoid U.S. income tax took center stage in tax avoidance policy. This practice known as corporate inversions is just one attempt of many by corporations to continually find new strategies to avoid tax liabilities while still remaining within the letter of the law. The struggle for tax law is that it must continually adapt to these strategies or it will become outdated and ineffective. Given this challenge, the judiciary has served as a policymaker by providing means beyond the written law for tax enforcement.

In this article, I will use the landmark case Gregory v. Helvering to explain the principles of extralegal tax adjudication central to federal tax enforcement. The term “extralegal” refers to approaches of statutory interpretation where the Court fills a gap in the law by interpreting a statute’s intent or purpose. In reaction to these principles, I will raise concerns about the blurring of the separation of powers between the Court and Congress and reduced certainty in tax avoidance law. I will attempt to clarify the answers to these contentions by examining the development of modern tax avoidance doctrine, highlighting the inconsistent applications of Gregory principles by lower federal courts and the clarification of the separation of powers through Congress’ codification of tax avoidance doctrine. Finally, I argue that it is justified and viable for modern extralegal tax avoidance doctrine to sacrifice some degree of democracy and some certainty in tax law because such extralegal principles help maintain the long-term efficacy of American government while posing little threat to the integrity of democratic government. At the same time, the Supreme Court must be more active in maintaining national uniformity of court doctrine.

Author: Frank Yan is a third-year in the College, majoring in Economics and Political Science.

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Gang Members of Common Intelligence: The Relevance of the Vagueness Doctrine in RICO Prosecutions of Urban Street Gangs

Abstract: This article will examine the constitutionality of the criminal provisions of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, specifically focusing on whether or not the application of the statute to sophisticated urban street gangs is in violation of the vagueness doctrine derived from the due process clauses of the Fifth and Fourteenth Amendments.1 The analysis will concentrate on constitutional challenges to specific elements of the statute,2 with distinct attention paid to its controversial “pattern of racketeering” and “enterprise” requirements. Given the legal precedent set by numerous challenges to various elements of the statute and recent attempts to define those elements, I argue that the RICO statute, though broad in scope, is not unconstitutionally vague or ambiguous in the context of urban street gang prosecutions.

Author: Kevin Hasenfang is a third-year in the College, majoring in Public Policy Studies.

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Reframing the Bitcoin Problem

Abstract: Though the use of bitcoin was concentrated in small networks for the first few years following its inception in 2008, it has recently gained favor outside of the young and tech-savvy community in which it was incubated. Today, it is estimated that between eighty and one hundred thousand bitcoin transactions take place daily. These transactions are anonymous and are thus untraceable as far as governmental agencies are concerned, offering nearly free range for illegal activities. It is largely for this reason that bitcoin has faced such a high degree of scrutiny from regulators—and because it has the power to render many traditional services provided by banks, payment services, and even lawyers obsolete. Some ardent constitutionalists argue that virtual currencies obstruct state power. Still, decentralized virtual currencies like bitcoin have great potential to positively change the way banking and commerce has been conducted since the 15th century. The purpose of this article is twofold: first, to briefly discuss the nature of virtual currency and its role in the global economy; next, to highlight how, given the multiplicity of categories into which bitcoin may be placed, and the regulatory confusion that results, as tempting as it may be to try to fit the metaphorical square peg into a round hole, it is necessary to establish a new statutory framework specific to bitcoin’s oversight.

Author: Jacob Romeo is a third-year in the College, majoring in Philosophy.

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The America Invents Act: First-to-File and America’s Innovation Climate

Abstract: In this article, I examine the three main arguments for and against the America Invents Act (AIA). I begin by setting the terms of the discussion: since the purpose of the patent system is to increase innovation, we should judge the AIA by its effect on innovation. I first consider efficiency, the main argument of proponents of the Act, and conclude that a) the marginal increase in economic efficiency from the Act is small and b) there is no evidence linking efficiency in the patent system to increased innovation. Next, I consider disclosure, the argument which links first-to-file with increased innovation. However, I find no evidence to back up this claim. Finally, I focus on the impact to small businesses. I began by establishing that small businesses are key to innovation, and thus could be a deciding issue in the debate. Then, I weigh the empirical evidence and find that a switch to first-to-file has hurt small businesses in other countries. From the analysis of these three issues, a clear conclusion emerges: the America Invents Act ought to be amended to restore the first-to-invent system in order to protect America’s unique innovation climate.

Author: Katherine Dannenmaier is a third-year at Stanford University, majoring in Economics.

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Deferred Immigration Action and the Limits of Executive Enforcement Discretion

Abstract: The Deferred Action for Childhood Arrivals (DACA) scheme was first announced by President Barack Obama in 2012, and subsequently extended in 2014. DACA allows for illegal immigrants who meet certain criteria to apply for deferred action status, which exempts them from deportation proceedings for two-year periods. From its inception, the Administration has justified DACA’s legality based on the notion of “prosecutorial discretion,” that is, the wide latitude given to the government in deciding whether to initiate prosecutions for legal violations. Nevertheless, DACA has been the subject of fierce controversy since 2012: critics of the Administration maintain that it represents an impermissible abdication of the President’s constitutional duties, and amounts to a unconstitutional act of law-making by the President. This article argues that DACA represents a lawful exercise of prosecutorial discretion, but that President Obama’s overuse of the concept may have unwelcome consequences for the constitutionally-enacted balance of power between Congress and the President.

Author: Yuan Yi Zhu is a fourth-year at McGill University, majoring in Political Science and History.

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