Professor Max Stearns, with co-author David S. Cohen, published an op-ed in the National Law Journal, arguing that the Supreme Court's fragmented recent ruling in McDonald v. City of Chicago illustrates the need for Justices that can forge accords, not only with allies but also with those on the other side.
"Certain to be lost in the discussion of McDonald is the fact that, as a peculiar consequence of the Court's decision-making rules, Chicago, which lost the case, actually prevailed on each of the decisive issues needed to win. The outcome in this landmark decision, which will dramatically alter legal policy in vital urban centers, is less a function of grand theories of constitutional law than the inner workings of the Court," the authors wrote. "This decision reflects deep divisions on the Court and the influence its internal decision-making rules have in affecting legal doctrine."
"What the Court needs is someone who can forge consensus, not only by uniting with her natural allies but also by occasionally persuading those on the other side. An effective coalition builder might have avoided the McDonald outcome by convincing at least one conservative member of the Court of the importance of an agreed-upon rationale as a precondition to upsetting long-standing urban policies throughout the United States concerning gun control."
Professor Stearns has written a book about how collective decision-making processes shape doctrines and case outcomes in the United States Supreme Court, Constitutional Process: A Social Choice Analysis of Supreme Court Decision Making (University of Michigan Press, paperback edition 2002). His most recent book, Public Choice Concepts and Applications in Law (West Publishing), co-authored with George Mason University Foundation Professor Todd J. Zywicki, is the only book specifically designed to instruct law students and students in related disciplines in the methodological tools of public choice, including interest group theory, social choice theory, and elementary game theory, along with basic price theory, and to apply these tools to wide-ranging topics in both public and private law and to various lawmaking institutions.
A prominent interdisciplinary scholar known for his application of novel methodologies to study a wide range of doctrines in public law, with a particular emphasis on judicial decision-making processes and structural constitutional law, Professor Stearns's work is widely published in several leading academic journals, including the Yale Law Journal, the University of Pennsylvania Law Review, the California Law Review, the Stanford Law Review, and the Vanderbilt Law Review. View Professor Stearns's leading works here.