Are They All Textualists Now?

What’s in a Name? Common Carriage, Social Media, and the First Amendment

Do Patents Drive Investment in Software?

The Supreme Court and Children

Worthless Checks? Clemency, Compassionate Release, and the Finality of Life Without Parole

Emerging Technology’s Unfamiliarity with Commercial Law

Are They All Textualists Now?

By: Austin Peters | March 10, 2024

Recent developments at the U.S. Supreme Court have rekindled debates over textualism. Missing from the conversation is a discussion of the courts that decide the vast majority of statutory interpretation cases in the United States—state courts. This Article uses supervised machine learning to conduct the first-ever empirical study of the statutory interpretation methods used by state supreme courts. In total, this study analyzes over 44,000 opinions from all fifty states from 1980 to 2019.

This Article establishes several key descriptive findings. First, since the 1980s, textualism has risen rapidly in state supreme court opinions. Second, this rise is primarily attributable to increased reliance on the statute’s plain meaning. Third, state supreme courts use tools of statutory interpretation often associated with textualism—plain meaning, dictionaries, and linguistic canons—much more often than legislative history or consequences. And fourth, there is dramatic variation in textualism use across states.

This Article also conducts several exploratory analyses investigating whether ideology and judicial selection are associated with the use of textualist tools. I find that conservative justices invoke textualist reasoning slightly more often. And, while the estimates are noisy, the findings also indicate this ideological gap is primarily explained by conservatives’ heightened tendency to invoke the plain meaning rule. As for judicial selection, cross-state evidence suggests that justices appointed by governors and legislatures use textualism more frequently than those selected via election or merit commission.

These findings add empirical discipline to ongoing debates about ideology and textualism. They also reframe priorities for future research on the plain meaning rule, textualism in general, and judicial selection’s relationship to statutory interpretation. More broadly, they illustrate how natural language processing methods can help statutory interpretation scholarship expand its focus and study state courts.

Do Patents Drive Investment in Software?

By: James Hicks | March 10, 2024

In the wake of a quartet of Supreme Court decisions which disrupted decades of settled law, the doctrine of patentable subject matter is in turmoil. Scholars, commentators, and jurists continue to disagree sharply over which kinds of invention should be patentable. In this debate, no technology has been more controversial than software. Advocates of software patents contend that denying protection would stymie innovation in a vital industry; skeptics argue that patents are a poor fit for software, and that the social costs of patents outweigh any plausible benefits. At the core of this disagreement is a basic problem: the debate is predicated on various claims about how and whether patents incentivize innovation, but like much of patent law, these claims rest on meager empirical foundations. This Article bolsters these foundations by testing one important claim: that patents serve to attract investment in new inventions.

Using a novel quasi-experimental approach and an original dataset, I investigate whether the grant of a patent makes a business-methods software startup more likely to attract early-stage venture capital investment. In contrast to prior scholarship, I find no evidence that patents play a role in channeling investment to these startups, nor that they lead to more successful downstream outcomes such as acquisitions and initial public offerings.

These findings have important implications for both patent policy and scholarship. First, this Article provides new evidence on the perennial controversy over whether business-methods software should be patent-eligible. As Congress continues to contemplate new legislation to clarify the law of patentable subject matter, the results call into question a leading justification for granting patents in this area. Second, in light of previous scholarship which finds a relationship between patents and investment in other areas of technology, I demonstrate the importance of developing industry-specific evidence on the role that patents play in stimulating innovation.

The Supreme Court and Children

By: Aaron Tang | March 10, 2024

How do children fare at the Supreme Court? Empirical research on the question is sparse, but existing accounts suggest a disheartening answer. A 1996 study found that children lost more than half of their cases in the Court, and a pair of prominent scholars lamented twenty years later that “the losses in children’s rights cases” had “outpace[d] and overwhelm[ed] the victories.”

In this Article, I present evidence that complicates this understanding. Based on an original dataset comprising 262 Supreme Court decisions between 1953 and 2023, I find that children have prevailed in 62.6% of their cases. This win rate is equal to or greater than the rates of two other groups that enjoy outsized success at the Court: business and religious litigants. It is also robust. Relative to the null hypothesis that children are equally likely to win or lose at the Court, the probability that children are actually more likely to prevail is significant at the 1% level. Far from faring worse than the average litigant, children seem to perform better across a range of case types and specifications.

After presenting these findings, the Article discusses several implications. Children’s rate of success reveals some surprising lessons for the legal-realist understanding of Supreme Court justices as individuals influenced by identity and ideology. It provides plausible reason for greater ambition among children’s law scholars and advocates. It teaches us to take a more encompassing view of law’s interaction with children—one that treats constitutional litigation as just one part of a broader constellation of efforts necessary to instantiate equality of opportunity for poor children and children of color. And most importantly, it offers a cautionary tale about the Supreme Court’s impotence as a true engine for societal progress. Even as the Court has ruled frequently in their favor, American children continue to face economic, educational, health, and other welfare deficits that should be unacceptable in any civilized society. Real progress—if it is to happen—is unlikely to come from nine lawyers sitting on high.

Nw. U. L. Rᴇᴠ.