Posted by Jonathan Adler:
Big Business and the Roberts Court - Panel III:
http://volokh.com/archives/archive_2009_01_18-2009_01_24.shtml#1232753537
The third panel at the Santa Clara Law Review symposium on [1]"Big
Business and the Roberts Court: Explaining the Court's Receptiveness
to Business Interests," featured Vikram Amar (UC Davis), Pam Karlan
(Stanford) and yours truly.
Click to show remainder of post.
Vikram Amar spoke on the implication of changing Court personnel on
the Court�s doctrine in the dormant commerce clause and punitive
damages context. Thus far, Amar noted, Justices Scalia and Thomas have
been unable to woo the Chief Justice and Justice Alito to adopt their
methodological originalism in these areas. This not only has
implications for business but also, Amar suggested, but perhaps also
on the continued viability of originalism as an interpretive
methodology.
On punitive damages, Amar notes, the Court does not split along
traditional ideological lines, with Justice Breyer (rather than
Justice Kennedy) playing the pivotal role. In the Philip Morris case,
for instance, Justice Breyer wrote the majority for Justices Kennedy,
Alito, Souter and the Chief Justice, whereas Justices Stevens,
Ginsburg, Scalia and Thomas dissented, Thomas on the explicit grounds
that the Court had no business limiting punitive damages on
substantive due process grounds. Justice Thomas and Scalia reject any
constitutional limitation on punitive damages, though both were
willing to support limits on punitive damages under maritime law in
the Exxon Shipping v. Baker, where Congress retains the ability to
impose a different rule.
Turning to the dormant commerce clause, Amar noted that Scalia and
Thomas (and particularly the latter) take a similarly absolutist view,
rejecting the idea that the dormant commerce clause has any textual
basis. Justice Scalia is willing to strike down some truly
discriminatory measures on stare decisis grounds, but Justice Thomas
has said he will not enforce the clause at all. Though the Chief
Justice and Justice Alito have differed on application of the dormant
commerce clause, neither has shown any inclination to join the
Scalia-Thomas originalist position.
In both areas, it may appear that Scalia and Thomas are opposing the
constitutionalization of particular rules without textual basis. Yet,
Amar noted, the dormant commerce clause operates as a default rule,
subject to legislative revision. Just as Congress can alter the limit
on punitive damages in maritime law, Congress can authorize state
measures that would otherwise violate the dormant commerce clause.
Moreover, Amar observed, there is well-over one-hundred years of
precedent on the dormant commerce clause upon which Congress has
relied in deciding when and whether to authorize state measures that
could inhibit interstate commerce. If Scalia and Thomas were truly
concerned about preserving Congress� role, Amar suggested, their
strict originalist approach is misplaced.
Pam Karlan sought to compare Caperton v. A.T. Massey Coal Co. with
Exxon Shipping v. Baker, two cases involving large punitive damage
awards against corporate defendants. In Caperton, a corporate CEO
spent approximately $3 million to unseat a pro-plaintiff state supreme
court justice in West Virginia so as to secure a favorable verdict in
a punitive damages case. The justice who won refused to recuse, and
cast the deciding vote in Massey Coal�s favor. Later this term the
Court will consider whether this failure violated Caperton�s due
process rights.
The efforts Of Massey Coal�s CEO, Blankenship, to buy a favorable
court result, Karlan suggested, are similar to the campaign by Exxon
to influence the outcome of its litigation efforts by funding academic
research raising questions about the reliability and fairness of large
punitive damage awards. Such efforts, she suggested, were an
equivalent effort to alter the course of litigation, and influence not
only a specific case (Exxon�s eventual appeal to the Supreme Court)
but how lower courts address similar issues going forward.
Why did Exxon feel the need to fund these studies, Karlan wondered. It
must be because otherwise the studies would not have been written (or
at least not when they were). This could be because some sorts of
studies, such as those involving hiring mock jurors, are sufficiently
expensive that they would not otherwise occur. Another possibility is
that Exxon�s funding alters the research queue of the experts
receiving Exxon funds. If so, Karlan wondered whether this is
unethical for academics, for what are our universities paying us for
if not (among other things) our independent judgment about what
subjects are worthy of academic investigation. [What does that say
about symposia like this one? This invitation certainly altered my
research queue � alas, there was no massive check attached.]
Interestingly enough, Justice Souter�s majority opinion in Exxon
Shipping noted Exxon�s funding of academic research on the consistency
and variability of punitive damages awards, in footnote 17, and
explicitly disclaimed any reliance those studies. Why did the Court do
this? One possibility, Karlan suggested, was because Exxon was a party
to the case. But would this mean that the same studies could be
considered in another case raising similar issues? Or would the Exxon
funding be similarly disqualifying?
Karlan said she did not believe Exxon�s efforts to �seed� the academic
research so as to improve its case rise to the level of a due process
violation. The Caperton case, on the other hand, raises a more serious
due process issue that could require the Court to adopt a
legislative-type rule to prevent this sort of abuse and govern
potential conflicts-of-interest in state courts going forward. If
Blankenship�s actions create a due process problem, the Court will
have little choice but to develop a series of legislative-type rules
about what is or is not required when parties before elected state
courts have contributed to campaigns or election efforts.
I�ll add a post summarizing my remarks later today or tomorrow.
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