[Orin Kerr, June 12, 2008 at 10:33am] Trackbacks
SSRN Citation:
This is completely nonsubstantive, but I note that the Court's majority opinion in Boumediene cites a draft article up on SSRN:
See Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. (forthcoming 2008) (hereinafter Halliday & White) (manuscript, at 11, online at http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=1008252 (all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a theory of liberty”)).
As far as I know, that's the first Supreme Court citation to a forthcoming article that is on SSRN. I would guess that the citation will be changed to the final version by the time the Boumediene case is compiled into the U.S. Reports, so in the end the Court's opinion will cite an article as published that wasn't when the opinion was handed down. Kinda cool.
Adam Shostack (mail) (www):
Orin,

I'm curious about the norms of legal practice here. The opinion relied on the work in the form it took on SSRN. Why would the citation be changed to a later version of the work? What if the authors expand their article into a book? Would legal citation norms require that the citing author go back and cite the latest version, or simply note that there are newer ones?
6.12.2008 11:52am
OrinKerr:
Adam,

There are no "norms of legal practice" here, as this is pretty new and such things are up to the issuing court. Here, it's really up to Justice Kennedy's chambers and the Reporter's Office to do what they think is best. I would think that as long as the final version has the same quote, they would switch it over to the final version just like they update page citation references from slip opinions to U.S. Reports pages. But that's just a guess.
6.12.2008 11:56am
krs:

I would guess that the citation will be changed to the final version by the time the Boumediene case is compiled into the U.S. Reports, so in the end the Court's opinion will cite an article as published that wasn't when the opinion was handed down. Kinda cool

1. Law Reviews can take a loooong time to publish something.
2. If the issue hasn't gone to press yet, I'd be concerned about the article changing in the interim. What if the authors feel the need to "clarify" or "strengthen" the section the court cites to?
6.12.2008 12:25pm
OrinKerr:
krs,

If the Supreme Court cited your forthcoming article, would you then decide to change the section that the Supreme Court relief on?

Nor would I.
6.12.2008 12:32pm
Adam Shostack (mail) (www):
Orin,

Thanks! Can you help me understand what's new here? Haven't there been drafts and pre-publications for a long time? Is SSRN different? In computer science, workshops often accept early versions of work which are later published in a more polished and complete form in a journal. I don't think I'd update my citation from a workshop version of a paper to a journal.
6.12.2008 12:40pm
ABC:
Would SCOTUS split the baby by citing the published law review but then add a footnote saying that at the time the opinion was first issued, the Court relied on a pre-publication version from SSRN? I see law reviews doing that sometimes...
6.12.2008 12:42pm
sdsingle (mail):
I agree the opinion in US reports should read as above. The authors should not feel compelled to leave this passage untouched, but if they do decide to alter it they might explain why.

Of course, if I were still a diligent law review editor and found myself editing some professor's piece citing the opinion citing the article, I would relish the opportunity to smugly point out any ways in which I thought the final article differed and required a complicated additional parenthetical to the effect of ("citing . . . as later modified at 94 Va. L. Rev. xxxx (explaining how Boumediene got it all wrong))."

I miss those days . . . .
6.12.2008 1:01pm
Oren:
Another nonsubstnative question, why 2 dissents joined by the same 4 justices? If there was anything in Scalia's dissent beyond that of Roberts', why would Roberts join in it?
6.12.2008 1:09pm
Humble Law Student (mail):
What's ridiculous is that the Halliday and White article is riddled with inaccuracies. The government's reply brief made several points about it, and your own humble law student analyzed it for a paper. The Halliday and White article even made an important factual assertion that is decidedly wrong, but unfortunately, I guess the Supreme Court didn't have time to actually parse the particular article to undercover the problems.
6.12.2008 1:33pm
Just Saying:
Another nail in the law review coffin...
6.12.2008 1:37pm
frankcross (mail):
What the law review editors should do is cite the Supreme Court's citation as authority and create a nice circle.
6.12.2008 1:37pm
JonC:
That's possibly the first SSRN citation for a forthcoming article to appear in an opinion for the <i>Court</i>. However, Justice Stevens' concurrence of several weeks ago in Baze v. Rees cited the SSRN version of a forthcoming Fordham Urban Law Journal Article-- check p.2 of the slip opinion, footnote 1.
6.12.2008 1:50pm
Anderson (mail):
Well, I certainly hope the article is hosted on an *American* server -- no foreign sources of law, please.

Maybe the NSA can answer this little question for us?
6.12.2008 1:52pm
PatHMV (mail) (www):
HLS... that's not at all uncommon. They each want to emphasize different things, all of which the 4 agree on.
6.12.2008 1:55pm
jrww (mail):

Well, I certainly hope the article is hosted on an *American* server

No room on American servers anymore, they're all being used to store Kozinski's pornos.
6.12.2008 2:08pm
ABC:
Anderson, come on, if you've ever downloaded from SSRN you'd know 3 of their 5 available mirror servers are in the US (NYC, Stanford LS, Chicago). (The other 2 are in Brussels and Seoul.)

Corrected link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1008252 (Orin's post above breaks it up)
6.12.2008 2:10pm
Sasha Volokh (mail) (www):
PatHMV is actually responding to Oren there. For instance, in Hamdan, I believe Scalia had a lengthy dissent solely on the jurisdictional point, while Thomas had a lengthy dissent solely on the merits. It was just a convenient division of labor.
6.12.2008 2:11pm
huh...:
HLS,
I looked at SCOTUSWiki and the Mayer Brown merits page, and I couldn't find a reply brief by the government. Please link to the brief you mention. I'm also curious as to any critique you have of the article. Its fairly easy to say it has a major factual error, and then not name it. Of course, I'm sure you pulled the numerous primary sources available only at the National Archives in England before you wrote your paper.

For all others: I believe the piece was published this month.
6.12.2008 2:55pm
krs:
Prof. Kerr, good point.

I haven't given much thought to the possibility of a court caring about anything I've written, but from what little I know of working with law professors during the publication process, they can be quite strange.
6.12.2008 3:05pm
pjh (mail):
jrw at 1:08 pm:

Not taking up any server space around this blog.
6.12.2008 9:03pm
Cleland:

For all others: I believe the piece was published this month.


The H&W article was in last month's VLR. 94 Va. L. Rev. 575. The published version is available at here, albeit with an extra line of file information at the top. Presumably the Court's opinion was written before it was published, but it's not clear to me why they wouldn't have updated the citation.


What's ridiculous is that the Halliday and White article is riddled with inaccuracies. The government's reply brief made several points about it, and your own humble law student analyzed it for a paper. The Halliday and White article even made an important factual assertion that is decidedly wrong, but unfortunately, I guess the Supreme Court didn't have time to actually parse the particular article to undercover the problems.


What are the inaccuracies and false factual assertions of which you speak? I'm curious but don't feel like hunting down and reading the reply brief.
6.12.2008 9:14pm