On a related note, I was honored to have the chance to ask Justice Ginsburg
a question -- I believe it was at an AALS annual meeting -- about the
propriety of sending unpublished manuscripts to the Justices, where such
manuscripts were relevant to a case before the Court. I expressed to her a
concern that doing so might be uncomfortably like filing an improper,
informal amicus brief (without permission, no less), but she said she saw
nothing wrong with it. She in fact invited scholars to send in work that
might be helpful to the Court even if it had not yet been published. (In the
preface to my question I had noted that of course the author would copy the
parties on whatever was sent to the Justices.)
The matter was of particular interest to me because several years earlier I
had sent such materials to the Court. I had written a bankruptcy article
that was relevant to a case that was before the Court. The article was in
final form (including the page layout, though page numbers had not yet been
finally assigned). Yet it would not be in print until after oral argument in
the case. Perhaps brashly, I had several copies desktop published, labeled
them as "preprints" with disclaimers about possible changes in page
numbering, and sent them to all the Justices and to the parties. If I
remember correctly, I received a nice thank you note from the chambers of
Justice O'Connor. No one objected, but, alas, the Court did not cite the
article.
Of course, an author's sending of materials to the Justices is not the same
as a brief writer's citing to an article. The author may know that the
article is in final form. A brief writer can't be sure that the author will
not make substantive changes before publication that would cause the
citation to boomerang.
Mark S. Scarberry
Pepperdine Univ. School of Law
-----Original Message-----
From: Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Tuesday, January 10, 2006 1:01 PM
To: election-law@majordomo.lls.edu
Subject: message from Rick Pildes
Rick Pildes writes:
We did not cite any unpublished academic work, including the forthcoming
article you mention. As you must know, that particular article has been
powerfully and, I believe, devastatingly criticized by another forthcoming
article by Michael McDonald * in the very same issue of that forthcoming
journal. As McDonald points out, the article you mention bizarrely used the
1988 Presidential election results to assess the competitiveness of the 1990
congressional districts and then to compare the competitiveness of the
post-redistricting 1992 districts, the article used the 1992 Presidential
election results * even though that was a three-way contest in which Ross
Perot received 18.9% of the vote. As McDonald's article shows, that
unhelpful baseline from the unusual 1992 election completely distorts all of
the results in the paper you note. When McDonald revisits the data using
"more valid measures of district competitiveness," as he puts it, he finds
no question that "redistricting is shown to reduce the number of competitive
congressional districts, contrary to Abramowitz et. al."
We would like to have cited this unpublished work, but I do not invite the
Court to rely on unpublished work, nor do I want to cite it before
publication. No matter how late in the production process an article is,
things can still change before publication. Indeed, I would like also to
have cited additional unpublished work, including additional work by
McDonald, that further confirms the obvious link between safe
districts and non-competitiveness. As McDonald concludes in "Drawing
the Line on District Competition," after data analysis: "Those engaged in
redistricting seem to have perfected their game, resulting in fewer
competitive districts in the 1991 and 2001 redistricting cycles." But
I also did not cite this work because it too was not in publication when
production of the brief was completed. The unpublished paper in your email
is, as far as I am aware, considered quite an outlier among the studies that
have looked at the 2000 elections. In advance of publication, it has
already been convincingly shown to be mistaken.
Please note that our brief never says that safe districting is the only
cause of the absence of competitive elections. We note that it is a
contributing cause. I believe the social-science evidence overwhelmingly
confirms this, even including unpublished work, especially for the 2000s,
which is the focus of the case.
Rick Pildes
Richard Pildes
Sudler Family Professor of Constitutional Law Co-Director, NYU Center on Law
and Security NYU School of Law 40 Washington Sq. So. NYC, NY 10012
phone: 212 998-6377
fax: 212 995-3662