As we get closer to March 3, when the United States Supreme Court will hear arguments in Caperton v. A. T. Massey Coal Company, a state appellate court has weighed in on the controversy, but it’s probably not the court or for the reason you’d expect.
According to this article by John O’Brien in today’s LegalNewsline.com, the Louisiana Supreme Court has moved for leave to file an amicus brief in the case, in order to refute allegations contained in a Tulane Law Review article that was cited in a brief filed by several amici on behalf of Caperton.
Here’s the backstory. In March 2008, the Tulane Law Review published an article entitled “The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function,” by Vernon Valentine Palmer and John Levendis.
The first paragraph of the article’s executive summary says:
This empirical and statistical study of the Louisiana Supreme Court demonstrates that the court has been significantly influenced — wittingly or unwittingly — by the campaign contributions from litigants and lawyers appearing before it. In a statistical sense, campaign donors enjoy a favored status among parties before the court. Facing an aggregate of $1.3 million in political donations in the cases under review, the justices did not find reason to disqualify or recuse themselves.
No wonder, then, that the amicus brief submitted by the Brennan Center for Justice at NYU School of Law, the Campaign Legal Center, and the Reform Institute cited the article as support for their position that Supreme Court of Appeals of West Virginia Chief Justice Brent Benjamin should have recused himself from the Caperton case.
The only problem is that the article has been criticized for its miscalculations and flawed methodology, which prompted Tulane Law School Dean Lawrence Ponoroff to apologize to the Louisiana Supreme Court last September.
On February 9, the Louisiana Supreme Court moved for leave to file its amicus brief out of time, in which it described the purpose for its brief:
The Louisiana Supreme Court’s purpose in filing its amicus curiae brief is to apprise this Honorable Court that the Tulane Law Review article has been thoroughly refuted because of its flawed methodology, error-laden data selection, and faulty analysis. See, e.g., Robert Newman, Janet Speyrer & Dek Terrell, A Methodological Critique of The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function, 69 LA. L. REV. 307 (2009); and because of its erroneous data collection, selection and analysis, see Kevin R. Tully & E. Phelps Gay, The Louisiana Supreme Court Defended: A Rebuttal of The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function, 69 LA. L. REV. 281 (2009). Due to the grave errors in the article, the Dean of the Tulane Law School issued a formal written apology to the Louisiana Supreme Court and to its Justices. And, the Tulane Law Review posted an Erratum on its website expressing deep regret over the article’s errors.
Here’s the Erratum on the law review’s website:
The Louisiana Supreme Court in Question: An Empirical Statistical Study of the Effects of Campaign Money on the Judicial Function, published in Volume 82 of the Tulane Law Review at 1291 (2008), was based on empirical data coded by the authors, but the data contained numerous coding errors. Tulane Law Review learned of the coding errors after the publication. Necessarily, these errors call into question some or all of the conclusions in the study as published. The Law Review deeply regrets the errors.
Counsel for the Louisiana Supreme Court and the writers of its amicus brief are Kevin R. Tully and E. Phelps Gay, who also wrote one of the two rebuttals to the Tulane Law Review article published this year in the Louisiana Law Review.
On a lighter note, if such a thing exists in the case, is this front-page article from Monday’s USA Today by Joan Biskupic, entitled “At the Supreme Court, a case with the feel of a best seller.”
Also today, The Wall Street Journal Law Blog published this post about Andrew Frey and Theodore Olson, who will argue for the parties at the Supreme Court. Frey and Olson are two of the most experienced and best known appellate lawyers in the country, which should make for an excellent argument.