Explaining SCOTUS Repeaters
69 Vand. L. Rev. En Banc 297 (2016)
27 Pages Posted: 28 Oct 2016 Last revised: 22 Nov 2016
Date Written: October 28, 2016
Why review the same case twice? That’s perhaps the most fundamental question posed by Jason Iuliano and Ya Sheng Lin’s study of what I call “Plenary Repeaters,” or cases that have resulted in multiple full merits rulings in the Supreme Court following certiorari. Drawing on Iuliano and Lin’s research, this response essay argues that a full explanation of Repeaters would recognize both that granting cert in one iteration of a case can increase the odds of a later grant in that case (interdependence) and that some legal issues are posed in only a small number of cases (infrequency). In addition, this essay collects evidence on recent “Summary Repeaters,” or cases that are Repeaters by virtue of summary rulings following certiorari, as well as on the expertise of attorneys who participate in Repeaters at the cert stage. Both Plenary and Summary Repeaters shed light on features of the Court’s constrained power to set its own agenda and so complicate depictions of the Court as a “reactive” institution. The factors that generate Repeaters thus offer avenues for additional research.
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