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Wednesday, January 18, 2017
The Latest CVSG Analytics for NJ Sports Betting (2016-17 Version)

The "death defying" New Jersey sports betting case--having secured the rare daily double of a rehearing en banc grant and a CVSG ("call for the views of the Solicitor General")--has proven to be the ultimate zombie of sports law cases: just when you think it's dead and buried, it is resurrected against improbable odds. But how much have those odds improved as a result of the Supreme Court's latest action calling for the views of the Solicitor General? A lot. The Solicitor General's recommendation carries "significant weight" with the Supreme Court, and, historically, it is followed around 80 percent of the time, according a 2009 George Mason Law Review article penned by now D.C. Circuit Court Judge Patricia A. Mallett. But that article is nearly eight years old, and the Court's composition has changed since then (e.g., Scalia, Kagan, Sotomayor), not to mention that there have been five different acting solicitor generals since 2009. Perhaps a more relevant--and less dated--statistical barometer of New Jersey's chances can be gleaned through an analysis of the more recent cases involving CVSGs. 

I decided to do some independent research. With the help of, and, of course, the indispensable SCOTUSBlog, I delved into the case histories of the 20 most recent cases (since the beginning of 2016) in which the Supreme Court acted on a cert petition following a Solicitor General response to a CVSG. (Note--there are 17 additional cases in which a CVSG has been issued during that time-period, but they cannot be meaningfully assessed since either the SG has yet to respond or the Supreme Court has not acted on the cert petition. Most involve CVSG's issued within the last three months). So review is limited to these 20 cases, admittedly a small (albeit, more recent) sample size.

And the results are surprising. Of the 20 most recent cases in which a CVSG has been issued and the SG filed a response brief (with action ultimately being taken), the Supreme Court followed the SG's recommendation one-hundred percent (100%) of the time. That's 20 out of 20 cases. Certiorari was granted in ten of those cases, and denied in the other ten. In other words, there has not been a single instance since the beginning of 2016 (covering 20 CVSG's) in which the Supreme Court has not followed the recommendation of the Solicitor General. Stated another way, Donald Trump could very well be deciding the future of New Jersey sports betting with his imminent solicitor general appointment. Maybe Chris Christie wants the job.

-- Daniel Wallach


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