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.�

   ([2]hide)

References

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