This is the first in a series of semi-live bog posts on the Santa Clara Law Review symposium on "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.
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. Of potential significance, most of these cases (9 of 11) involved employment or ERISA issues. This data 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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