In Progress

This week I start teaching First Amendment law for the very first time.  It should be great fun. For the class textbook, I have adopted Kathleen Sullivan & Noah Feldman, First Amendment Law (5th Ed). (This textbook is basically just the last 750 pages of Sullivan & Feldman, Constitutional Law (18th Ed.)). As I prepped the first line of cases explored in the text — “clear and present danger” from Schenck (1919) to Brandenburg (1969) — it occurred to me that the textbook’s materials could be usefully mapped and hyperlinked.

The map above represents my initial attempt at charting the clear-and-present danger cases discussed from pages 15-50 of the Sullivan & Feldman text (pp. 899-934 of Con Law 18th Ed). Briefly, I interpret the doctrine during this period as having two competing lines of opinions. The dominant line (represented by purple downward-facing triangles) permitted suppression of speech if it promoted “bad tendencies” in audiences. The dissenting tradition (represented by blue circles) advocated a more permissive standard for free speech, permitting suppression only where the speech imminently incited unlawful conduct. The “bad tendency” line effectively held sway until Brandenburg redeemed the famous early dissents of Holmes and Brandeis.

At this juncture, I am less interested in discussing the content of the map than its form (in my next post, I’ll return to the substance and make a First Amendment argument). In this map, I am experimenting with a potential way to “deliver” Con Law textbooks or perhaps online supplements. Though the map above looks like a standard SCOTUS doctrinal map — Y axis shows votes for an opinion, etc — if you click on the image above and then click on the opinions, you’ll see something different.

What I’ve done is simple. Each opinion links to a page that features discussion of the opinion as prompted by the Sullivan & Feldman text. The page also contains links to other resources such as the full opinion text via CourtListener, oral argument and summary via Oyez, political science data via the Supreme Court Database, and other historical and contextual information via Wikipedia. Go on, try it out! I’ll wait…

Admittedly, my execution at this point is very rudimentary. I created the opinion drop pages using Word’s html editor. So it could look a lot prettier. And the content could use editing for sure. But I’ll confessing to liking the overall idea. The map basically serves as a way to organize a hyperlinked textbook portion. Given that so much of Con Law turns on lines of Supreme Court cases, it seems to me that this form might have broader application. At least visual learners might appreciate seeing the big picture while working their way through the edited texts.

The proof, I suppose, is in the pudding. I will direct my new students to this map when the semester starts and report back on how they react. Meanwhile, and as always, I’d love to hear any comments or ideas from readers. Could this form work to aid teaching con law?

Winter Break is over and it’s time to fire up the SCOTUS doctrinal mapping machine! I’ll start 2015 by looking back at my last post. No, this is not early-onset nostalgia for 2014. I first need to correct an error in that post.  My interest, however, extends beyond setting the record straight. Understanding what went wrong last time helps explain the very nature of this project and why I call this blog “In Progress.”

Let’s start with the post in question. If you don’t feel like re-reading, here’s the basic gist. I posited that Confrontation Clause doctrine post-Crawford could be visualized as a tussle between three camps: the bashers, builders, and swing vote. I argued that Justice Thomas was the swing vote “since he has voted with the majority in every single case in this line.” This map represents the argument (click for full size):

After putting this out into the blogosphere, I was lucky enough to hear back from two of the leading Confrontation Clause scholars in the country — Richard Friedman and George Fisher. Both professors kindly pointed out that Davis v. Washington opinion actually decided two cases (Davis plus Hammon v. Indiana) and that Thomas was the lone dissenter in Hammon. So it is decidedly not true that Thomas has voted with the majority in every post-Crawford case.

How did this error occur? The short answer is that I improperly assumed that Davis and Hammon could be plotted as a single data point.  No doubt this was a rookie mistake. Had I closely read the Davis opinions, I would have realized that Thomas joined the Court in denying Adrian Davis relief but dissented from granting Hershel Hammon relief. Yet I did not create the map by reading. Instead, I automatically generated a citation network using CourtListener and then coded that network using Supreme Court Database (Spaeth) data. And both CourtListener and Spaeth incorrectly identify Davis as a single datapoint. 

In fairness, CourtListener’s “error” is really not an error at all. The fact is that Davis/Hammon share the exact same citation so any citation-based network has to treat the cases as one. Put another way, no unique cite exists for the Hammon case decided by the Supreme Court on June 19, 2006. The practice of deciding two cases under a single caption will similarly confound every search engine — including Lexis, Westlaw, Fastcase, Ravel and so on.

On the other hand, Spaeth might have done better. That database is populated by human readers who theoretically code every case for many variables including decision direction (liberal vs conservative) and majority vote count. Under such a schema, the two cases really should be treated distinctly since the decision direction differed (the criminal defendant lost in Davis but won in Hammon) as did the majority vote-count (9-0 in Davis verus 8-1 in Hammon). In any event, it seems that the Court’s single-citation-for-two-cases practice should be added to the list of “watch outs” for scholars using Spaeth.

The Davis/Hammon hiccup stands as a good example of the kinds of challenges involved in applying network theory to understanding Court doctrine. Automatically generating citation networks is a powerful tool, but the Court’s complex hermeneutic practices require constant refining of the maps created by the tool. Now I call this blog “In Progress” because I am interested in publicly exploring this continual process of refinement. I thus happily invite others — experts or interested amateurs — to help me figure out when and why the tool gets it wrong or misses something.  Progress is a community effort.

With respect to the specific Davis/Hammon problem, I have an imperfect fix. This is what it looks like:

As a reminder, upward-facing triangles on the map represent opinions advocating in favor of the confrontation right/criminal defendant while downward facing triangles represent the opposite. Note how Hammon now appears to the left of Davis on the map and how Thomas’ opinion is marked as a 1-vote dissent rather than concurrence. Note also how I kludged Hammon‘s date to separate it from Davis — failing to do this would result in the datapoints appearing on top of each other.  

So the fix ain’t pretty, but at least it’s progress. Or so I hope. Comments more than welcome!

** Postscript ** Based on a comment from the SCOTUS Mapper’s very own Darren Kumasawa (see below), I must note that Spaeth actually DOES properly record Hammon and Justice Thomas’ dissent in it.  It just does not do this in the dataset we use (which is the citation-centered set rather than the issue-centered set). The existence of two datasets with not completely consistent data means that you still need to “watch out while using Spaeth”. However, I was quite wrong to imply that the good folks over at the Supreme Court Database failed to get their coding right on Hammon. My apologies! Once more, this is why I call this blog “In Progress”!!

This is the fifth and final installment in a series mapping Confrontation Clause doctrine since Crawford v. Washington (2004). In previous posts, I identified the 2-degree network connecting Williams v. Illinois (2012) to Crawford, calibrated the network to correct over- and under-inclusiveness issues, analyzed the network’s degree of dissent, and disaggregated the network into its 23 constituent opinions. Today I’ll wrap up by charting out the primary competing lines in the doctrine. I identify three major lines, which I’ll call the Builders, the Bashers, and the Swing Vote.

The story here begins in 2004. Five of the justices currently sitting on the Court participated in the original Crawford deliberations — Scalia, Kennedy, Thomas, Ginsburg, and Breyer. Those five justices remain the prime movers in the Confrontation Clause debate today. Although all five signed on to Justice Scalia’s majority opinion in Crawford, they have since split into three camps. Let’s examine each camp in turn.

First up we have the Builders line. I call Justices Scalia and Ginsburg by this name because they have sought to build up and extend Crawford‘s innovation. While Scalia is clearly the doctrine’s main architect, Ginsburg has proved a staunch ally. Scalia and Ginsburg have written every majority opinion where the right was vindicated and they were the only two justices to dissent in Bryant.  Indeed, the Builders’ perspective has shone though in every case except Williams. ( Of course, both Scalia and Ginsburg signed onto Kagan’s Williams dissent.)

Before turning to the Bashers line, a brief explanation about map legend is in order. All of today’s maps use upward-facing triangles to represent opinions advocating in favor of the confrontation right/criminal defendant and downward facing triangles to represent the opposite. Solid arrows connecting opinions to each other signify connection between the main justices/authors in the line. Dotted arrows represent connections with less central justices/authors. Thus, the arrow from Bullcoming to Williams in the map above is dotted since Kagan — not main Builders Scalia or Ginsburg — wrote that dissent.

Though it was not always so, Kennedy and Breyer are the Bashers of Crawford doctrine. At first, the Bashers joined Scalia — shown in the map by the dotted lines from Crawford and Davis. Then came Giles. And then came the split. (For an excellent discussion about Giles‘ doctrinal impact, see Prof. Richard Friedman’s contribution to the this recent Michigan Law Review Symposium). After Giles, Kennedy and Breyer have bashed the confrontation right in every case the Court has heard. Thus, the Bashers are the doctrinal nemeses of the Builders.

Finally, there is Thomas. He is the Swing Vote. Amazingly, Thomas is the only justice to have voted with the majority in every single case in this line. He picks the winners. And Thomas’ campaign to affect the doctrine actually started before the Bashers split in Giles. Thomas first voiced his unique formal approach to understanding what makes a statement “testimonial” in Davis. And in every case after Davis (except for Bullcoming), Thomas has doggedly pushed his perspective. For his persistent efforts, Thomas can claim success. Though Thomas only concurred in Williams, at least one court reckons his is the controlling opinion.

The map above brings the Builders, Bashers, and Swing Vote into a single frame. This image represents the major doctrinal currents at play in Confrontation Clause jurisprudence. These are the waters to be navigated by advocates in Ohio v. Clark, the Court’s next major Crawford-line case.

This post is already longer than usual; it’s time to sign off. Before doing so, I want to make a final point. Though the map above distills what I see as the most important lines in the debate, I recognize that it is incomplete. If I had time — alas, winter break is here and grades are due soon! — I might also trace the complications introduced by the  post-2004 justices. (The Kagan-Sotomayor line is interesting, for example, since they both voted with the Bashers in Bryant but joined the Builders in Bullcoming and Williams.) Perhaps adding to this map will be a project for this Blog in 2015.

Until then, Happy Holidays!

This is the fourth installment in a series of blog posts charting out Confrontation Clause doctrine since 2004’s Crawford v. Washington. Last time, I deployed a Spaeth visualization to illustrate how the early doctrinal consensus around Crawford has collapsed. Today we introduce individual Justices into the picture, graphically illustrating the proposition that the Court’s authority derives from its authors.

The above map depicts the majority opinions in the Crawford line with opinion authors noted below the opinions. The Y-axis indicates the number of votes each opinion received. Note how counting votes for an opinion differs from counting votes for judgment. Thus, while judgment was unanimous in Crawford, the map shows that two justices did not join Justice Scalia’s opinion. More dramatically, though five justices endorsed judgment in 2012’s Williams decision, only four justices joined Justice Alito’s plurality opinion.  This map confirms that Crawford doctrine lacks consensus.

Before considering one more map, I want to point out a potential error in this first one. The potential error is with the Supreme Court Database (Spaeth) coding. The map represents cases with Spaeth-coded “conservative” outcomes with red triangles; blue-triangles thus represent Spaeth-coded “liberal” outcomes. Now, Spaeth codes the 2008 case Giles v. California as conservative. I think this is an error since Giles rather controversially vacated a pro-state/anti-defendant outcome. In other words, Giles was a victory for the criminal defendant, which should qualify as “liberal” under Spaeth’s rubric.  I have therefore re-coded Giles — see below:

The map above displays as individual points the complete set of 23 opinions in the Crawford line (7 majority +  10 concurrences + 6 dissents). The number of votes received for all the opinions is again displayed on the Y-axis. Please note, however, that the Y-positions had to be tweaked slightly in two cases with multiple one-vote opinions (Giles [Thomas, Alito], Bryant [Thomas, Scalia, Ginsburg], and Williams [Thomas, Breyer]). Finally, Justice Alito’s four-vote plurality opinion in Williams also has its Y-value tweaked to distinguish it from Justice Kagan’s four-vote dissent.

This complicated picture portrays many voices straining to be heard in the constitutional conversation. In the past decade, ten different justices have authored Crawford-line opinions. Except for Chief Justice Roberts, every currently sitting justice has stated his or her views at least once. Some have prolifically contributed to the debate. Justice Scalia, for example, has penned a dissent in addition to his four majority opinions. This is perhaps unsurprising since Justice Scalia was the prime architect of the early doctrine. More unexpectedly, Justice Thomas has also written  five opinions, all concurrences. (More on that next time).

While there’s much to chew on here, there is also work yet to be done. Next time I’ll connect the individual data points above via citations. This will reveal “competing lines” in the doctrine and allow us to better visualize the evolution of Confrontation Clause jurisprudence over the last decade.

UPDATE: The original version of this post incorrectly stated that Justice Alito’s plurality opinion in Williams garnered three votes. It actually garnered four. The text and map have been changed to reflect this. HT George Fisher. 

After a brief “True Threats” interruption, we return today to Confrontation Clause doctrine since Crawford v. Washington. In my last post in this series, I argued that 2008’s Indiana v. Edwards does not really belong in the Crawford network (even though it was picked up by the citation algorithm) and that 2007’s Whorton v. Bockting is similarly unimportant to current Crawford doctrine since Whorton concerned only the narrow issue of retroactivity. Let’s look now at an edited version of the last Crawford map (click for full-size version with links to opinions):

This map employs a Spaeth visualization schema — the Y-axis represents Supreme Court Database codes on majority outcome vote and decision direction. (For more on Spaeth visualization, see this post and/or this video). The scheme displays cases with a high degree of outcome consensus in the middle of the map  — 9-0 judgments like Crawford and Davis. Conversely, cases with less consensus are displayed at the top (Spaeth-coded liberal) and bottom (Spaeth-coded conservative) of the map.

After Crawford and Davis, we see that decisions in this line have invariably provoked dissent. How much dissent? Let the “Degree of Dissent” of a case be #Number_of_dissents * 0.25. This means a case with no dissents has a degree of dissent of 0. A case with four dissents — the most possible in SCOTUS — has a degree of dissent of 1. The Crawford network’s average degree of dissent is 0.61, somewhere between a 7-2 (0.5) and a 6-3 (0.75). After Davis, however, the degree of dissent is 0.85 — between a 6-3 and a 5-4.

This map thus shows that the early consensus around Crawford has fallen apart. Understanding just how this fragmentation occurred requires looking closer at the competing lines of doctrinal interpretation. That requires yet another kind of map. Coming soon…

Today the Supreme Court will hear argument in Elonis v. United States, the Facebook “true threats” case. Given the buzz over this case, I’m going to interrupt my current series on the Confrontation Clause in order to briefly consider the doctrinal network at issue in Elonis. Let’s jump right in.

According to the 3rd Circuit opinion under review, the Supreme Court “first articulated the true threats exception to speech protected under the First Amendment in Watts v. United States (1969).”  The latest SCOTUS true threats case is Virginia v. Black (2003). The specific doctrinal question in Elonis is whether the true threats exception requires a jury to find the defendant subjectively intended his statements to be intended as threats. The 3rd Circuit concluded that no subjective intent was required. Based on the Black and Watts endpoints, we can easily generate a simple network.

As shown in the map above, Black directly cites Watts (1 degree connection). Black also cites RAV v. St. Paul, which in turn cites Watts (2 degree connection). All the light blue cases form the 3-degree network. The magenta case line is a very specific 4-degree connection to Rogers v. United States. I wanted to include this because the 3rd Circuit in Elonis made reference to Justice Marshall’s concurring opinion in Watts to buttress its view on subjective intent.

Of course, not all the cases in the network above directly concern threats. In order to have a sharper view of the doctrine at issue, I ran the network above through a text filter using Courtlistener’s API. Specifically, I asked the Mapper to display only those cases where the “threats” appeared in opinion text. Here is the result.

Although I  have not read the cases in this map, I strongly suspect that the doctrinal analysis/debates  contained in these cases will come into play in the Court’s Elonis deliberations. Readers interested in checking out the cases can do so easily by clicking on the images above and then clicking on any opinion — the Courtlistener page will pull right up.

Hopefully, this map demonstrates one application of using network theory to study Court doctrine. It can quickly generate “potential reading lists” for advocates and scholars interested in surveying any given doctrinal area based on given case endpoints. Of course, generating real insights requires reading the texts closely. And that is as it should be.

In celebration of Crawford v. Washington‘s 10-year anniversary, we’re looking at Supreme Court Confrontation Clause doctrine. In my last post, I generated a 2-degree citation network connecting the Williams v. Illinois (2012) back to Crawford. The 2-degree algorithm produced a network that included seven of the Court’s  eight major post-Crawford rulings (as identified by Prof. George Fisher) and only included one case not  apparently part of the main post-Crawford line.  Although this network is relatively complete, the reasons for its under- and over- inclusiveness warrant further attention.

Let’s start with the under-inclusiveness problem. The 2-degree algorithm did not pick up 2007’s Whorton v. Bockting. This means that (a) Williams did not cite Whorton; and (b) no case cited by Williams itself cited Whorton. As it happens, there are also no 3- or 4-degree connections between Williams and Whorton. To link Williams and Whorton by citations actually requires 5 separate steps. Here’s what those steps look like (click for full-size with opinion links):

As shown by the pink line, the citation line from Williams to Whorton must pass through Melendez-Diaz (2009) to Boumediene (2008) to Munaf (2008) to Danforth (2008). Danforth finally provides a Supreme Court cite to Whorton.

So what’s the deal? Why doesn’t the Court ever cite to Whorton anywhere near its mainline Crawford cases? Here a simple explanation works: the only “Crawford issue” in Whorton concerned retroactivity. Specifically, Whorton unanimously held that Crawford did not apply retroactively. So once decided, Whorton had no bearing on the development of Crawford doctrine. There is no need to cite it anymore. Indeed, SCOTUS has only ever cited the case twice: once in a retroactivity case (Danforth (2008)) and once in a GVR arising out of Whorton itself.

Now let’s turn to the over-inclusivity problem. The 2-degree algorithm picked up Indiana v. Edwards (2008), a criminal case largely concerned with mental competency. The reason that Edwards shows up is because Justice Alito cited the case in his plurality opinion in Williams. Specifically, Justice Alito cites Edwards as one of a “steady stream of new cases in this Court” resulting from Crawford. To be honest, this cite is rather baffling since Edwards has nothing to do with confrontation.

To delve into this mystery, let’s look at Edwards. In his majority opinion in that case, Justice Breyer does very briefly cite Crawford while making a general point that the Court has generally “rejected an approach to individual liberties that abstracts from the right to its purposes, and then eliminates the right.” Breyer points to Crawford as an example of this general point (“although the Confrontation Clause aims to produce fairness by ensuring the reliability of testimony, States may not provide for unconfronted testimony to be used at trial so long as it is reliable.”). In context, this reference seems gentle dig at Justice Scalia who famously wrote Crawford, yet dissented in Edwards. 

So why does Edwards subsequently get cited by Justice Alito in Williams? I have no real idea but am willing to hazard a wild guess. I’ll blame powerful search engines and imprecise argument.  If someone — let’s say a clerk — was to search for SCOTUS cases that cited both cited Crawford and provoked a dissent from Justice Scalia, Edwards would come up. Since Scalia did not join the majority or plurality in Williams, this cite sort of serves as a dig at him (“you created this steady stream of cases, which are a mess”). It’s a wild theory, I admit. But it at least seems more generous than the other obvious explanation — plain old sloppy research.

In the end, I think our Confrontation Clause map is best viewed without Edwards. I just don’t see it as part of the “steady stream” of post-Crawford cases despite Alito’s cite. In my next post, I’ll consider an updated map that makes this edit and also incorporates the names of the justices/opinion authors into the picture. As hinted at by the discussion above, I think that it is unwise to visualize the post-Crawford line without considering the individual positions and strategic alliances of the Court’s justices. Next time I’ll explain more on this point.

Ten years ago, the Supreme Court revolutionized Confrontation Clause jurisprudence in Crawford v. Washington. To celebrate Crawford‘s 10-year birthday, the Michigan Law Review has just published an online retrospective featuring fantastic debate and analysis about the doctrine’s path over the past decade.  As I read the essays, I realized that mapping post-Crawford jurisprudence could be both helpful to 6th Amendment studies and revealing about the challenges of visualizing Supreme Court citation networks. Over the next few posts then, I will explore these challenges by constructing Confrontation Clause maps.

One great advantage offered by a post-Crawford case study is that it theoretically implicates a small closed universe of cases. After all, Crawford is only 10 years old. My first goal was to see if I could automatically “capture” all the important cases in this doctrine using the Mapper’s citation-network algorithm. As explained in this video, this algorithm creates networks by looking for n-degrees of connection between any two user-specified cases.

To generate the network, I simply needed two cases that defined the earliest and latest rulings in the doctrine. Crawford itself is the obviously starting point. For the endpoint, I chose the Court’s latest prominent pronouncement, 2012’s Williams v. Illinois. Now to keep things simple, I asked the algorithm to only look for 2-degree connections. Thus, it generated a network of cases that (a) were cited by Williams; and (b) themselves cited to Crawford. Here’s the result (you can click on the image to see a full-sized version of the map complete with links to the underlying opinions):

Although I am no 6th Amendment expert, I could immediately tell that this map was incomplete. Where were Bullcoming v. New Mexico and Michigan v. Bryant? I recalled that Williams had discussed (cited) both of those two important 2011 cases, yet they did not show up. The issue here turns out to be a technical problem related to the Court’s practice when invoking to recent decisions that don’t yet have proper reporter cites. In Williams, for example, cites to Bullcoming look like this “564 U. S. ___”. This practice turns out to be a real pain for the computer bots that parse opinions.

Now I have alerted the gurus over at the Free Law Project (which generously provides the Courtlistener database and API for all the world, including our Project, to use) about the issue and they’ll deal with it when time permits. In the meantime, I simply added Bullcoming and Bryant into the network by hand. Here is what the “fixed” 2-degree network looks like:

This looked a lot better to me, but I wanted to check it against expert opinion. So I turned to Prof. George Fisher‘s article in the Michigan Law retrospective mentioned above. In it, Prof. Fisher suggests that there have been “eight major rulings” in the Crawford line since 2004. These are: (1) Hammon v. Indiana (2006); (2) Davis v. Washington (2006); (3) Wharton v. Bockting (2007); (4) Giles v. California (2008); (5) Melendez-Diaz v. Massachusetts (2009); (6) Michigan v. Bryant (2001); (7) Bullcoming v. New Mexico (2011); and (8) Williams v. Illinois (2011).

So how did the algorithm do? Not bad. Looking only at the 2-degree connections between Williams and Crawford, the network contains all but one of the rulings Prof. Fisher identifies. The only case that is really missing is Wharton. (Although Hammon does not appear on the map, it was decided with Davis in 2006 and published in the same opinion). The only case pulled via the 2-degree method in that Prof. Fisher did not include on his list is Edwards. Although slightly underinclusive and overinclusive, the citation-network approach provided a great first cut at identifying the key cases in the Crawford–Williams line.

In the next post, we’ll look beyond the first cut and consider the problem of under- and over-inclusiveness in more detail. Stay tuned!

Two weeks ago, I launched this blog with what I called an “immigration problem.” The problem involved transforming an automatically generated network of Supreme Court immigration cases into a more accurate and useful map of immigration doctrine. In subsequent posts, I chipped away at the problem and ended up with an admittedly incomplete yet arguably more accurate and useful picture of the evolution of the Court’s doctrine from the Chinese Exclusion Case (1889) to Padilla (2009).

Today’s post presents a visual coda to the original problem. Last weekend, I was fortunate enough to talk shop with bona fide immigration scholar and advocate extraordinaire Peter Markowitz. He suggested that I try mapping a different part of immigration territory. This alternate territory concerns the dubious relationship between (a) the Court’s designation of immigration removal proceedings as civil rather than criminal; and (b) the Court’s now-rejected “inherent powers” theory. Here is what I came up with:

This map is based on Markowitz’s 2008 article entitled “Straddling the Civil-Criminal Divide” published in in Harvard Civil Rights -Civil Liberties Law Review. In this article, Markowitz argues that the Court in Fong Yue Ting (1893) relied on the inherent powers theory to justify its designation of removal proceedings as civil. Though the Court initially reaffirmed inherent powers in Curtiss-Wright (1936), it started to reject the theory in Reid v. Covert and then confirmed its rejection in cases like Afroyim (1967) and Verdugo-Urquidez (1990). This effectively negates Fong Yue Ting‘s original doctrinal justification and renders suspect its conclusion regarding the civil nature of removal.

The map above demonstrates one way to tell this complex story visually. I created it in steps. First, I generated a 3-degree citation network connecting Afroyim and Fong Yue Ting (2-degree connections are blue; 3-degree connections are brown). Then I filtered the network to include only those cases that contained the word “inherent.”This left some “stranded” cases — they lacked a connection to either a parent or child in the network — and so I edited those cases out by hand.

Although the resulting map featured most of the cases from Markowitz’s article, my algorithm had notably failed to pick up Reid v. Covert. This is because Afroyim is not connected by three degrees of citation to Reid. To fix this problem, I generated a 2-degree citation network connecting Verdugo-Urquidez to McCulloch v. Maryland (1819) (shown in red above).   I chose Verdugo because it was the latest reference I saw in Markowitz’s article to a case rejecting the inherent powers theory and I chose McCulloch because I noticed Reid v. Covert cited it extensively in its doctrinal discussion. After editing out the resulting network to include only Verdugo, Reid, McCulloch and Curtiss-Wright, I then merged my two maps to come up with the image above.

Readers can judge for themselves, but I think the result usefully visualizes the networks implicated Markowitz’s argument. Scholars interested in testing his thesis can easily access the text of underlying cases by clicking on opinions of interest in the full-sized version of the map. This demonstrates what I hope is another useful feature of the mapping tool — it can efficiently organize a complex doctrinal information in a way that can facilitate further inquiry.

Yesterday, the Supreme Court issued a summary reversal of the Fifth Circuit in Johnson v. City of Shelby. The short per curiam opinion represents the latest chapter in the Court’s recently-controversial doctrine interpreting the requirements for federal pleadings under FRCP 8(a)(2). Working in collaboration with civ pro guru Prof. Scott Dodson of UC Hastings, I have charted out this doctrinal territory before. Today’s map is thus as updated look that places City of Shelby in its visual context.

Note that this map uses a custom schema where the Y-axis represents the relative liberality of a pleadings opinion. Upward-pointing triangles represent cases where the Court found a claim was stated under 8(a)(2); downward pointing triangles represent cases where no claim was stated. Green citation lines represent positive citations to prior caselaw; yellow citation lines represent limiting or negative citations. (For a detailed explanation of this schema, please see this video).

I have placed City of Shelby on the higher end of liberality spectrum because the opinion specifically invoked two liberal pleadings opinions in support of its result — Leatherman and Swierkiewicz (thus the green lines of citation). The opinion also made clear that its famously illiberal opinions Twombly and Iqbal were “not on point” because those cases concerned “substantive plausibility”, which was not at issue given the plaintiff had indeed “stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city.” Plaintiff in this case had merely failed to invoke 42 USC 1983 in its civil rights complaint and the Court warned against a “further insistence on a punctiliously stated ‘theory of the pleadings.’” This limitation on the reach of Iqbal and Twombly is represented by yellow lines of citation.

At this juncture, City of Shelby seems to represent the next stage in what Prof. Dodson and I have described as a “genuine uptick in pleading liberality.” While Iqbal represented a low in liberality, the Court has since handed a series of victories to plaintiffs (Matrixx, Skinner, and now City of Shelby) that might assuage the fears of commentators worried about “the end of notice pleading.” Of course, it is also possible that this per curiam opinion will go largely unnoticed and uncited. This seems to be the fate that has befallen Erickson, a  prior per curiam pleadings opinion.

Only time will tell.

UPDATE: The SCOTUS Mapper Library now contains a version of this map with links to underlying opinions.