On a recent flight, I read Jeffrey Toobin’s New Yorker Article on Chief Justice Roberts entitled “No More Mr. Nice Guy”. The exchange quoted above is drawn from this article. While I believe it is appropriate to engage empirical data where available, the underlying discussion is not one exclusively subjectable to empirical inquiry. Rather, it is, at least in part, a question in need of a formal theoretic model. Justice Roberts and Mr. Katyal are implicitly discussing a “state of the world” not yet realized but which would be realized if the statute were not to exist. What would benefit the discussion is principled manner to adjudicate between these two inferences drawn above. Namely, it would be useful to fully evaluate what behavior would likely follow if the statute were not to exist.
There exist a variety of mathematical modeling techniques which could inject some much needed rigor into the above discussion. To my knowledge, such an applied model has yet to be offered. The Supreme Court’s decision in the matter is soon forthcoming. Given the nature of the exchange above, there is reason to believe that if Chief Justice Roberts prevails ….we will get our model as the “state of the world” discussed above will no longer be hypothetical….