Supreme Court, Inc.

Illustration by Andy Friedman (website, email) from March 16, 2008 New York Times Magazine.

Jeffrey Rosen (profile and email), a law professor at George Washington University writes in tomorrow’s article, “Supreme Court, Inc,” that

A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.”

Things have changed, however. Rosen talked with Robin Conrad, who heads the Chamber of Commerce’ss litigation effort and said she was especially pleased that several of the most important decisions were written by liberal justices and questioned the use of lawsuits to challenge corporate wrongdoing, strategy routinely denounced by conservatives as “regulation by litigation.”

Justice Ginsburg talked about how “private-securities fraud actions, if not adequately contained, can be employed abusively.”Justice Breyer had a wonderful quote about how Congress was trying to “weed out unmeritorious securities lawsuits.” Justice Souter talked about how the threat of litigation “will push cost-conscious defendants to settle.”

Rosen indicateds that since the appointment of John Roberts,

Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.


Rosen maintains that while these cases receive less attention than those concerning issues like affirmative action, abortion or the death penalty

shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars.

He cites the blocked liability suit against Medtronic, the manufacturer of a heart catheter, and a shareholder claim against Enron. Additional, the court is slated to In the coming months, the decide whether to reduce the punitive-damage award which resulted from the Exxon Valdez oil spill in 1989.

*
I’ll sign off now to drive to Roanoke to Lilly’s for a potluck and international folk dancing.

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