Is the Supreme Court Pro-Business?

[Slate has started a new law blog called Convictions. Part of my first post is reproduced below.]

Jeffrey Rosen argued that it is, in a Sunday NYT magazine article, but he supplies little evidence:

"Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting voices."

-- But how many of them were decided in favor of businesses?  Weirdly, we're not told.  What if businesses won only half the time?  Or less?  Even if businesses won more often than other parties, we wouldn't be able to establish bias without knowing whether their cases were strong or weak.

"Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years."

-- Another meaningless statistic.  Suppose that the additional cases involve disputes between businesses and workers and that the workers always win.  We can't tell whether bias exists unless we know whether the Court rules in favor or against those business interests.  (For one case where the employee wins, go here.)

"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."

-- These seven cases--Volvo Trucks North America, Inc. v. Reeder-Simco, GMC, Inc. (2006); Texaco, Inc. v. Dagher (2006); Illinois Tool Works v. Independent Ink, Inc. (2006); Weyerhaeuser v. Ross-Simmons Hardwood Lumber Co., Inc. (2007); Bell Atlantic Corp. v. Twombly (2007); Leegin Creative Leather Products, Inc. v. PSKS, Inc. (2007); Credit Suisse First Boston Ltd. v. Billing (2007)--are mostly business versus business cases.  Only one case--Twombly--pitted consumers against businesses.  Credit Suisse ambiguously pitted investors (including corporate investors) against a business.  So in five or six of the seven cases in which a corporate defendant won, a corporate plaintiff lost.

"Exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce's petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog."

-- Those 10,000 petitions include lots of hopeless cases.  The Chamber of Commerce will obviously pick and choose on the basis of the quality of the case, and put resources only behind those cases that have a chance of prevailing.  Hence its high win rate.

"And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent."

-- The overall success rate of petitions does not tell us the success rate of the Chamber of Commerce.  The pertinent statistic is that last term the Chamber of Commerce won 13 of 15 cases for which it wrote an amicus brief.  But, again, without knowing whether these cases were strong or weak, we have no way of telling whether this win record reflects bias or simply the Chamber's ability to sniff out cases where lower courts erred.

-- I looked at the 23 cases listed on the Court's website for this term.  I counted nine business cases: of these, businesses lost in 5 cases, more than half.  But this doesn't tell us anything either.  If the court has become more pro-business, most parties will settle in line with the changing jurisprudence, and there is no particular reason to think that win/loss data will tell us anything (the "selection effect" problem that dogs empirical research).

Aside from these ambiguous statistics, Rosen cites four decided cases to support his argument.  These four cases are less straightforward than they appear at first sight.  To see why, consider the question, what does it mean to be pro-business?

Continue here.

Comments

[LAK]

Professor, your sophistry is almost shocking.

"Alternatively, one might argue that this case is pro-business because Charter Communications' vendors won. But that is just a way of saying that the vendors' shareholders made (or did not lose) money. Is the case anti-business because Charter's shareholders lost or pro-business because the vendors' shareholders won?"

Uh, the casedidn;t involve the vendors' shareholders, remember?
So Charter commits massive securities fraud through shady deals with its complicit vendors. The fraud is exposed and those who actaully were harmed, *Charter sharholders alone* who bought while the fraud was on the market, want to hold the vendors primarily liable who willfully and knowingly helped perpetrate the fraud. To imply that this case may be pro-shareholder because the vendors' shareholders weren't harmed is disingenuous. The case and controversy here is with the Charter shareholders and no one else. You are going outside the context of the case and invoking those who do not have standing to try to whitewash the fact that this was a huge victory for businesses. they now can willfully help other companies with whom they do business commit fraud without the threat of being held primarily liable by the other company's shareholders. That's bad for everyone in the aggregate and will only encourage fraud. This case isn't about the shareholders of the vendors, it is about the shareholders of Charter who got screwed when they lost money when charter and its Vendors commited fraud. Your analysis should stay within those bounds, right?

And Twobly? A frickin joke. You now apparently have to know and plead facts that show an outright conspriacy and agreement to make a Sherman Act claim? Last time I checked, the statue said "contract, combination or conspiracy," not just "conspiracy." But the Court essentially cut off the ability to prosecute Sherman act claims unless you have evidence of an outright agreement or conspriacy. That is not the Sherman Act I was taught in law school, nor is it consitent with teh notion of liberal pleading.

Going outside the context of these cases and appealing to outside shareholders or other groups of consumers to imply these decisions might not be pro-business is absurd. For someone like you who believes that what's good for business is ultimately good for the consumer, it is a pretty weak and lazy argument to advance. That you need to do that to paint them as possibly pro-consumer or shareholder is telling.