Ryan W. Scott (Indiana University Maurer School of Law) has posted an article on SSRN entitled “Inter-Judge Sentencing Disparity After Booker: A First Look,” see here. The piece is forthcoming in the Stanford Law Review. Professor Scott uses a unique dataset from the United States District Court for the District of Massachusetts to examine how judges have handled their new sentencing freedom as a result of cases such as Booker, Kimbrough, and Gall. Using a natural experiment method, the study finds that the “judge effect” at sentencing has more than doubled since that trio of cases was decided by the Supreme Court. Though the article examines only the data from a single district, the empirical findings are consistent with anecdotal evidence around the nation regarding inter-judge sentencing disparities as a result of the Supreme Court’s recent sentencing jurisprudence. Of particular note, the study finds that some “business as usual” judges continue to sentence below the guideline range at essentially the same rate as before Booker, while other judges now sentence below the guideline range at triple or quadruple their pre-Booker levels. This is a very interesting article and well worth a read for those who are interested in the Court’s recent Sixth Amendment jurisprudence.
In a timely article, Michael A. McCann (Vermont Law School) has posted “American Needle v. NFL: An Opportunity to Reshape Sports Law” on SSRN, see here. The piece was just published in the most recent issue of the Yale Law Journal, see here. In the piece, Professor McCann reviews the history of the American Needle case; analyzes antitrust law in the context of professional sports; and evaluates the Seventh Circuit’s single-entity rule under the Sherman Act, which is the subject of the American Needle case currently before the Supreme Court. As Professor McCann notes, the stakes are high: if the Court holds that the NFL is just a single entity, then it would change the way many courts examine professional sports leagues in the antitrust context. He also examines how the ruling will affect each of the other major organized sports leagues, including the NFL, NBA, NCAA, NHL, and Major League Baseball. The bottom line is that Professor McCann urges the Court not to consider the NFL a single entity because it is contrary to precedent and would mischaracterize the actual operations of professional sports leagues. Instead, professional sports organizations should seek antitrust exemptions from Congress on a case-by-case basis.
Finally, rather than take up a normal slot in the academic round-up, I note that Professor James F. Spriggs (Washington University Department of Political Science) and I have recently posted a new paper on SSRN entitled “Why the Supreme Court Issues Plurality Opinions, see here. This new empirical piece analyzes a facet of the Court’s operations that has yielded little scholarly attention: what factors account for the nearly 4% of cases that end with plurality decisions? Using a case-level and individual-Justice model, this paper uses a dataset from 1953-2006 to uncover the factors that account for the occurrence of plurality decisions.