David L. Sloss's "People v. The Court"

David L. Sloss is the John A. and Elizabeth H. Sutro Professor of Law at Santa Clara University.

He is an internationally renowned scholar who has published six books and several dozen book chapters and law review articles. His scholarship covers a broad range of areas, including international law, constitutional law, and international affairs. His scholarship is informed by a decade of experience in the federal government, where he helped draft and negotiate several major international treaties.

Sloss applied the “Page 99 Test” to his new book, People v. The Court: The Next Revolution in Constitutional Law, and reported the following:

Readers who open the book to page 99 will see this table:

Information in the table is taken from a YouGov poll conducted in May 2024. Positive scores indicate that respondents trust a particular information source. Negative scores indicate that they distrust that source. The text after the table notes that there is a large gulf between Democratic and Republican scores for CBS, the New York Times, CNN, and Fox News.

Page 99 continues:

It is questionable whether American democracy can survive the collapse of epistemic authority.... The problem today is that democracy cannot function effectively without agreement on shared facts. The rise of the right-wing media ecosystem has undermined agreement on shared facts because denizens of the right-wing media ecosystem occupy a different factual universe than citizens who rely primarily on the mainstream media as a source of news and information.

Unfortunately, the Page 99 Test does not work very well for my book. The book is primarily a work of constitutional theory. The theory is designed in part to address the problem of democratic decay in the United States. The book as a whole demonstrates that the Supreme Court’s constitutional doctrine is a key factor contributing to the problem of democratic decay. The book elaborates a theory of judicial review that, if implemented, would transform constitutional law from a body of law that is accelerating democratic decay to a body of law that could help ameliorate the problem.

Page 99 is part of chapter 4, which deals with election-related misinformation. Election- related misinformation is one important factor that contributes to democratic decay. Chapter 4 explains how the Supreme Court’s misguided First Amendment doctrine has exacerbated the problem of election-related misinformation, thereby contributing to democratic decay. Chapter 4 also sketches the outlines of a legislative proposal that would limit the spread of election-related misinformation. The analysis shows that changes in First Amendment doctrine—changes justified by my broader constitutional theory—are necessary to give Congress the flexibility it needs to enact effective legislation to curb the widespread dissemination of election-related misinformation.

Learn more about People v. The Court at the Cambridge University Press website.

The Page 99 Test: Tyrants on Twitter.

--Marshal Zeringue