Do the Justices Play Nicely Together?

SCOTUS justicesFor the second autumn in a row, the federal public defenders here in Milwaukee were kind enough to invite me to speak on the U.S. Supreme Court’s criminal docket, reviewing last term’s cases and previewing the new term.  The event is a great opportunity for me to think about patterns and themes that cut across individual cases.  I plan now to recapitulate some of my obervations in a series of short blog posts over the next couple weeks.  This is the first.

It is commonly thought that the Court is bitterly divided along ideological lines.  In criminal cases, the stereotypical picture in recent terms would look like this: four conservative Justices (Scalia, Thomas, Roberts, and Alito) vote for the government, four liberal Justices (Stevens, Souter, Ginsburg, and Breyer) vote for the defendant, and Justice Kennedy in the middle gets to decide what the law is.  The picture is not an attractive one, suggesting that most of the Justices decide cases on a knee-jerk basis, without really listening either to the advocates or to their own colleagues.

How well does the stereotype actually reflect reality?  The answer depends on what type of criminal case you are talking about. 

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Commodifying Environmental Resources

grand canyonMany people value certain environmental resources even if they have never actually visited or “used” those resources.  For example, a person might assign what economists call “nonuse values” to the Grand Canyon, the Great Barrier Reef, or a particular endangered animal species even if she has never hiked the Canyon, gone scuba diving on the Reef, or personally encountered that endangered species.   Some scholars have categorized nonuse values into three types: the “option value” is the value a person places on preserving an environmental resource so that she has the option of using it in the future; the “bequest value” is the value the person places on being able to preserve the resource for the enjoyment of future generations; and the “existence value” is the value the person places on the mere knowledge that the resource exists. 

Consensus has proved elusive on whether and how nonuse values should be considered in cost-benefit analysis of new environmental projects or regulations.  In economic terms, such valuation will have the positive effect of incentivizing people not to destroy the resource.  But economists have struggled to assign actual dollar values suitable for use in such a calculus.  One widely used but controversial method called “contingent valuation” involves the use of surveys to find out what individuals would pay to preserve environmental resources.  Survey results are then averaged and generalized across entire populations.  The design of the survey questions is controversial, and the results are often rigidly contested or even rejected out of hand.  One famous CV study estimated the nonuse harm of the Exxon Valdez disaster at between two and eight billion dollars. 

Quite apart from the raging debate over the validity of contingent valuation, other scholars are waging a separate struggle over whether it is harmful for society to “commodify” or “commoditize” certain things. 

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SCOTUS Fantasy League Debuts

Hey, Supreme Court buffs, think you can handicap the high court’s cases better than you can Packers games?  If so, you might want to join the Premier Supreme Court Fantasy League.  As detailed in this post on the WSJ Law Blog, participants gets points for accurately predicting not only the bottom-line outcome of cases, but also the breakdown of Justices on each side.  Top point-gainer at the end of the term is declared Chief Justice.

Hat tip to 1L Timothy Shortess.

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