Just a brief update today. Last week, the latest edition of the Cato Supreme Court Review was published, and it included an article by yours truly entitled Litigation Matters: The Curious Case of Tyson Foods v. Bouaphakeo. Here’s the abstract from SSRN:
The general assumption when analyzing Supreme Court jurisprudence is that the opinion is the product of a clash between the justices (and their 30-odd clerks) and their specific ideological predilections. And there is no question that judges — especially those on the Supreme Court and the various federal appellate judges — matter in the development of law in the United States. But the role of the litigator is often overlooked. Given the adversarial nature of the American justice system, this is surprising. It is the litigator who frames the issues that appear before the judge at each level. It is the litigator who creates the record the judge must examine. And it is the litigator who makes the particular tactical choices that result in the case as it appears before the judge on appeal. Despite its comparatively narrow ruling, Tyson Foods is an interesting case because it makes the effects of those choices particularly transparent.