Posted by Jonathan Adler:
Big Business and theRoberts Court - Panel I
http://volokh.com/archives/archive_2009_01_18-2009_01_24.shtml#1232735222
This is the first in a series of semi-live bog posts on the Sanra
Clara Law Review symposium on [1]"Big Business and the Roberts Court:
Explaining the Court's Receptiveness to Business Interests." The
morning opened with welcoming remarks from Santa Clara University
School of Law Dean Donald Polden. After a warm welcome to the
participants and attendees, Dean Polden suggested that in just a few
short years the Roberts Court has worked significant changes in
certain areas of law important to business. In antitrust, for
instance, he suggested the Roberts Court has "dismantled" the
architecture of the law through a series of pro-defendant decisions.
What causes this? He speculated that there was several possibilities,
ranging from the power of corporate money to fund high-powered
litigation, the gradual "re-education" of judges and lawyers by the
likes of the Olin Foundation, or perhaps just a general change in
public opinion or elite consensus.
The first panel consisted of practitioners engaged in Supreme Court
litigation: Robin Conrad of the National Chamber Litigation Center
(the litigation arm of the U.S. Chamber of Commerce), Brian Wolfman of
the Public Citizen Litigation Group, and Sri Srinivasan of O�Melveny &
Myers. All three have been heavily involved in business-related cases
before the High Court. My write-up of this panel is below.
Click to show remainder of post.
First up was Robin Conrad who set out to �debunk� the �emerging
popular myth of the pro-business bias� of the Roberts Court. Conrad
said she has seen �no convincing evidence� that the Roberts Court is
�biased� in favor of business, at the expense of fairness or other
concerns. She did, however, note the possibility that the Court shares
some basic legal values supported by the business community, including
uniformity and notice in the legal and regulatory context.
According to Conrad, the fact that court is taking more business cases
is not evidence that the Court is �pro-business.� The trend could be
an artifact of the Court�s �incredibly shrinking docket,� in which
business cases appear to take up a larger share of the Court�s work.
This could also be due to the Chief Justice�s expressed interest in
unanimity, and a recognition that business cases may be less
polarizing or divisive than other types of cases. It could also be
�long-overdue course correction� that is making up for the Rehnquist
Court�s relative disinterest in business cases.
Turning to the substance of the cases, Conrad noted that in some areas
the Court may be more sympathetic to business concerns, but that this
could also reflect the Court�s recognition of certain problems, such
as the perceived failings of the state tort system. More broadly,
while the Chamber has had some success, but this has not been
consistent. As noted in the press, the position supported by the
Chamber won in 13 of 15 cases in which the Chamber participated in
OT06, but only 8 of 15 cases in OT07. She also noted that some cases
are more significant than others and that it is hard to reconcile some
high-profile business losses, such as Massachusetts v. EPA, with the
idea that the Roberts Court is meaningfully �pro-business.� Further,
she rejected the idea that the Court is �pro-business� because it has
become more conservative, noting that in the vast majority of theses
cases have been decided by over-whelming majorities, a bare majority
unanimously.
Brian Wolfman expressed the general view that it is �too early to
tell� whether there is a pro-business slant. �You need more time and
you need more data,� adding it is also important to take into account
the role of the government in such cases. Responding to Conrad,
Wolfman suggested that a 7-2 or even 8-1 split does not indicate the
lack of ideological division. With new justices on the Court, Wolfman
suggested, cases that would have been decided 5-4 cases before could
now be decided 7-2. He also noted that an important consideration will
be how Congress responds to the Court�s business-oriented statutory
decisions, and how the Court responds to Congressional corrections,
such as the expected passage of a bill to overturn the Ledbetter pay
discrimination case.
Wolfman focused the balance of his remarks on preemption, and the
reasons he believes congressional preemption of state tort-law
remedies is bad public policy. As an initial matter, Wolfman rejected
the idea that there is a problem when federal regulatory measures and
state tort law overlap, and noted that the Supreme Court has been
anything but consistent in its handling of this issue. He challenged
the idea that state tort law is equivalent to positive regulation,
thereby challenging the idea that federal regulatory standards
necessarily conflict with state tort law judgments concerning similar
issues. While Congress has considered substantial tort reform, Wolfman
rejected the idea that Congress was engaged in implicit tort reform
when it enacted various federal regulatory statutes.
Wolfman focused the balance of his remarks on preemption, and the
reasons he believes congressional preemption of state tort-law
remedies is bad public policy. As an initial matter, Wolfman rejected
the idea that there is a problem when federal regulatory measures and
state tort law overlap, and noted that the Supreme Court has been
anything but consistent in its handling of this issue. He challenged
the idea that state tort law is equivalent to positive regulation, and
the idea that federal regulatory standards necessarily conflict with
state tort law judgments concerning similar issues. While Congress has
considered substantial tort reform, Wolfman rejected the idea that
Congress was engaged in implicit tort reform when it enacted various
federal regulatory statutes. Among other things, he argued that
regulatory agencies and the tort system operate in very different
ways. Regulatory agencies can impose ex ante restrictions, require
information disclosure, and demand immediate corporate responses to
emergencies (such as the need to recall contaminated or dangerous
products). To the extent that the tort system has a regulatory effect,
Wolfman argued, it does so only after many lawsuits and court
judgments.
While the tort system and regulatory system may overlap and interact,
Wolfman argued the tort system is not a substitute for regulation, nor
should the existence of regulation preclude recovery by injured
consumers. Indeed, it may be socially optimal for the regulatory
system to allow useful products to remain on the market, while still
using the tort system to compensate those injured by such products.
While the tort system will exert some regulatory pressure, this is a
good thing Wolfman argued, noting many products that escaped
regulation from a �broken� system, and were later subject to product
liability suits. In sum, Wolfman argued that state tort law cannot
replace, and should not be displaced by, federal regulation,
particularly when Congress has not explicitly expressed its intent to
preempt state tort law.
Sri Srinivasan echoed the prior panelists concerns about reaching
premature conclusions about the Roberts Court. That said, he offered
some perspective on the Chamber of Commerce�s win-loss rates. While
acknowledging that the Chamber of Commerce�s participation in a case
is a useful proxy for business interest in a case, it is not a perfect
proxy. With that qualification, he noted that the Chamber has won
approximately two-thirds of the cases in which it has participated as
an amicus in the Robets Court. Yet, he noted, the Court appears to be
more �pro-government� than �pro-business.�
Looking at which 26 cases during the Roberts Court in which both the
federal government (through the Solicitor General�s office) and the
Chamber participated as amici, the Chamber does not appear to have all
that great of an influence on the Court's decision-making. In the 15
of the 26 cases in which the Chamber and the SG were on the same side,
the Chamber won all 15 cases. In the 11 of the 26 in which the Chamber
and the SG disagreed, however, the government won and the Chamber
lost. This would suggest that the SG�s office is more influential than
the Chamber, at least in cases where the SG participated as an amicus.
[Note: What this data excludes, however, are cases involving direct
challenges to government decisions, such as challenges to regulatory
agencies.]
The apparent influence of the SG�s office could be particularly
important going forward Srinivasan suggested, as many would expect the
SG�s office under President Obama to be less hospitable to business
interests than has been the SG�s office during the Bush
Administration. If so, this would help illuminate the extent to which
the Roberts Court has, in fact, been �pro-business.�
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