At the time of this post’s publication, oral arguments in the Supreme Court antitrust case NCAA v. Alston are just days away. As mentioned in the very first article in this series of pieces designed to highlight this landmark sports law case, the Supreme Court’s role in deciding Alston will be to clean up the circuit split continuously highlighted by the NCAA in their briefing before the court. This circuit split involves how the lower courts have interpreted the Supreme Court’s 1984 ruling in NCAA v. Board of Regents, specifically in how Justice Stevens’s opinion called for “ample latitude” to be given to the “revered tradition of amateurism in college sports.”
To wrap up this post series leading into Alston oral arguments, I want to introduce a new adapted measure of citation network analysis that can highlight this circuit split while at the same time highlight the most important cases in the discrete citation network of NCAA amateurism antitrust cases.
“Citation stickiness” is a statistic created by University of North Carolina School of Law professors Kevin Bennardo and Alexa Z. Chew to measure how often judges employ precedent cited by case parties in their opinions. As the name implies, the measure serves to demonstrate how ‘sticky’ a citation is, where sufficiently ‘sticky’ citations are those that make it from the party brief into the judge’s opinion.
While Bennardo and Chew’s measure is an excellent way to provide some insight into judicial decision-making by giving a look into how and when parties influence opinions, when reading this piece I thought that an adapted version of this measure could be useful for citation network analysis as well. Instead of tracking how ‘sticky’ a case is from brief to opinion, one can track how ‘sticky’ a case is from opinion to later opinion, where cases that remain ‘sticky’ (i.e. cited) over time within a discrete citation network are seen as the most important cases in those network, as this shows that judges are continually compelled to cite this case in later opinions.
To quantity this effect, this adapted measure divides the number of times a case is cited throughout subsequent cases in the network by the number of citation ‘opportunities,’ which is simply an expression of the number of subsequent cases in the network that thus had the ‘opportunity’ to cite the case. While this is not too much different than simply counting the number of in-degree citations, this measure gives a more temporal flare to this analysis, allowing us to see whether cases lost influence over time.
|Board of Regents||1984||0.86||1/1||6/7||7/8||10/12|
For the NCAA amateurism citation network (limited to antitrust cases discussing or applying amateurism as an NCAA defense), it is unsurprising to see Board of Regents as the most popular case in the network, given its qualitative importance as the starting point for this line of precedent. The second-strongest case, Smith v. NCAA, would certainly be a good starting place for anyone looking to read up on the history of antitrust application to amateurism rules as the Third Circuit in this case made their decision based on the idea that NCAA rules are non-commercial (a theory later adopted by the Sixth Circuit) while also applying Rule of Reason analysis as well to ensure depth to their opinion.
One surprising finding here was the lack of enduring power of one particularly hallmark case: O’Bannon v. NCAA, which was cited just once in the four cases that followed it. While O’Bannon is certainly a newer case—and four cases is certainly not enough to make any broad conclusions about the staying power of O’Bannon as influential precedent—it is interesting that the Seventh Circuit in a case like Deppe v. NCAA never cited O’Bannon, even to reject it. O’Bannon was obviously big public news when it came out, so it is iAnteresting that 3/4 of the cases that followed it simply ignored it, despite similar legal issues.
Along these lines, it is also interesting to frame and visualize the stickiness of cases both inside and outside of its own circuit in order to demonstrate the circuit split that likely caused the Supreme Court to take the Alston case.
As this table shows, more recent cases are relying much more heavily on cases within their own circuit and completely ignoring outside cases. For example, while the Seventh Circuit’s decision in Agnew v. NCAA featured citations to eighth cases to support its analysis, the case that followed Agnew in the Seventh Circuit, Deppe v. NCAA, cited just five: Agnew, and four other cases that were cited by Agnew. As such, this analysis shows that cases have become more entrenched within their own circuit precedent over the years, solidifying the circuit split and showing both why and how the Supreme Court was right to take up Alston.
As this measure is new, it is difficult to say whether this entrenchment by courts within their own circuit precedent is novel or common among all citation networks—even those without circuit splits. Moreover, this measure shows only binary indications of citation; it does not show the quality of the citation, or whether the citation was to follow or to reject the cited case’s reasoning. Still though, this measure is useful to show case importance over time, demonstrate circuit splits, and give a great final preview of next week’s Alston oral arguments by showing why the Court needs to clean up what has become quite a mess of conflicting precedent in the lower courts.