Law Reviews; Study Data From D.E. Ho et al Provide New Insights Into Law Reviews

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Publish Date:
May 20, 2010
Source:
Politics & Government Week
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Summary

Professor Daniel E. Ho is referenced here in Politics & Government Week for his research on the U.S. standing doctrine:

“While the standing doctrine is one of the most widely theorized and
criticized doctrines in U.S. law, its origins remain controversial. One
revisionist view argues that New Deal progressive Justices purposely invented
the standing doctrine to insulate administrative agencies from judicial review,”
researchers in the United States report.

“Yet existing support for this ”insulation thesis” is weak Our Article
provides the first systematic empirical evidence of the historical evolution of
standing. We synthesize the theory and claims underlying the insulation thesis
and compile a new database of every standing issue decided, along with all
contested merits votes, by the Supreme Court from 1921-2006. To overcome
conventional problems of haphazard case selection, we amass, read, and classify
over 1500 cases cited in historical treatments of the doctrine, assembling a
database of all standing issues contested With modern statistical methods and
this new dataset comprised of 47,570 votes for 5497 unique issues and 229
standing issues we find compelling evidence for one version of the insulation
thesis. Before 1940, progressive Justices disproportionately deny standing to
plaintiffs in cases that largely involve challenges to administrative agencies.
After 1940, the political valence of the standing doctrine reverses:
progressives uniformly favor standing. Justices Douglas and Black, in
particular, track this evolution (and valence reversal) of the standing
doctrine. While the evidence for liberal insulation is strong, the historical
period of unanimously decided standing cases prior to the period of insulation
does not support liberal invention per se,” wrote D.E. Ho and colleagues.

The researchers concluded: “Our results challenge legal inquiries of what
claims are traditionally amenable to judicial resolution and highlight the
unintended consequences of judicial innovation.”

Ho and colleagues published their study in Stanford Law Review (Did Liberal
Justices Invent The Standing Doctrine? An Empirical Study Of The Evolution Of
Standing, 1921-2006 Stanford Law Review, 2010;62(3):591-667).