[EL] Perhaps for First Time, Justice Breyer’s McCutcheon Dissent Cites Unavailable Forthcoming Scholarship

[Derek Muller]

Rick, I tweeted (the height of academic inquiry, I
know--here<http://twitter.com/derektmuller/status/451375319392350208>and
here <http://twitter.com/derektmuller/status/451376988129734656>, the
second with a link to a now-expired HUP page) about it when *McCutcheon *was
released--but, sadly, the only response was of interest, not of anyone who
could identify any precedent. Interestingly, the HUP link identifying the
forthcoming book was available when *McCutcheon *was released, but it
appears that HUP has now moved the page to here:
http://www.hup.harvard.edu/catalog.php?isbn=9780674729001

Another question I had is, who sent him the advance copy, and did everyone
on the Court get them?

Derek

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy.

Malibu, CA 90263

+1 310-506-7058
SSRN Author Page: http://ssrn.com/author=464341

On Sat, Apr 19, 2014 at 8:32 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>     Perhaps for First Time, Justice Breyer’s McCutcheon Dissent Cites
> Unavailable Forthcoming Scholarship <http://electionlawblog.org/?p=60645>
>  Posted on April 19, 2014 8:28 am <http://electionlawblog.org/?p=60645> by
> Rick Hasen <http://electionlawblog.org/?author=3>
>
> I was rereading *McCutcheon *last night in preparation for a Monday talk
> at the case at the Center for the Study of Democracy<http://www.democracy.uci.edu/node/25699>.
> I noticed that Justice Breyer cites to Robert Post’s forthcoming book on *Citizens
> United: *
>
> That is also why the Court has used the phrase “subversion of the
> political process” to describe circumstances in which “[e]lected officials
> are influenced to act contrary to their obligations of office by the
> prospect of financial gain to themselves or infusions of money into their
> campaigns.” *NCPAC,* 470 U.S., at 497, 105 S.Ct. 1459.<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1985114052&pubNum=708&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29>See also *Federal
> Election Comm’n v. National Right to Work Comm.,* 459 U.S. 197, 208, 103
> S.Ct. 552, 74 L.Ed.2d 364 (1982)<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1982153514&pubNum=708&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29>(the Government’s interests in preventing corruption “directly implicate
> the integrity of our electoral process” (internal quotation marks and
> citation omitted)). See generally R. Post, Citizens Divided: Campaign
> Finance Reform and the Constitution 7–16, 80–94 (forthcoming 2014) (arguing
> that the efficacy of American democracy depends on “electoral integrity”
> and the responsiveness of public officials to public opinion).
>
> The book is forthcoming in June according to Amazon<http://www.amazon.com/Citizens-Divided-Campaign-Constitution-Lectures/dp/0674729005/ref=sr_1_1?s=books&ie=UTF8&qid=1397921007&sr=1-1&keywords=citizens+divided>,
> based on Robert’s Tanner lectures and with responses by Pam Karlan, Larry
> Lessig, and Frank Michelman.  SSRN notes the book<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2365024>,
> but provides no draft.
>
> Have there been any other occasions where Justices have cited scholarship
> not available in the public record.  Justice Scalia cited a forthcoming
> piece posted on SSRN in Heller (“And if one looks beyond legal sources,
> “bear arms” was frequently used in nonmilitary contexts. See Cramer &
> Olson, What Did “Bear Arms” Mean in the Second Amendment?, 6 Georgetown
> J.L. & Pub. Pol’y (forthcoming Sept. 2008), online at http://papers.
> ssrn.com/abstract=1086176 (as visited June 24, 2008, and available in
> Clerk of Court’s case file) (identifying numerous nonmilitary uses of “bear
> arms” from the founding period).”). Justice Kennedy did in Boumediene (“.
> Thus the writ, while it would become part of the foundation of liberty for
> the King’s subjects, was in its earliest use a mechanism for securing
> compliance with the King’s laws. See Halliday & White, The **2245 Suspension
> Clause: English Text, Imperial Contexts, and American Implications, 94 Va.
> L.Rev. 575, 585 (2008)<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0338636871&pubNum=1359&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Search%29#co_pp_sp_1359_585>(hereinafter Halliday & White) (manuscript, at 11, online at
> http://papers.ssrn.com/sol 3 /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”)”.)
>
> But Justice Breyer cited to something which is not available on SSRN nor
> is there any notation that a copy is in the Clerk of Court’s file.
>
> Is there any precedent for this?
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60645&title=Perhaps%20for%20First%20Time%2C%20Justice%20Breyer%E2%80%99s%20McCutcheon%20Dissent%20Cites%20Unavailable%20Forthcoming%20Scholarship&description=>
>    Posted in Supreme Court <http://electionlawblog.org/?cat=29>
>
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