[EL] Perhaps for First Time, Justice Breyer’s McCutcheon Dissent Cites Unavailable Forthcoming Scholarship
Rick Hasen
rhasen at law.uci.edu
Sat Apr 19 10:24:21 PDT 2014
missed those tweets---i was a busy day. Sorry!
On 4/19/14, 10:21 AM, Derek Muller wrote:
> 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 <tel: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
> <mailto: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 <http://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?
>
> 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>
>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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