July 26, 2005
Will John Roberts Be Pro-Business?
The speculation that Judge John Roberts will be pro-business once he ascends to the United States Supreme Court is simplistic and thereby wrong. Analysts are projecting how a new Justice Roberts would decide pending antitrust, intellectual property, labor discrimination, and products liability cases. ( See Lorraine Woellert's "Bringing Business to the Bench" in the Aug. 1, 2005 Business Week.) These projections have three problems. First, it is not clear in many cases which side of a case is "pro-business." In an antitrust decision that allows a large merger, for example, small business competitors may be losers. Similarly , protecting intellectual property helps some and disables others in producing a product or service. In a decision that federalizes a rule on tort damages, many local businesses, with the ability to lobby locally but not nationally, lose. Second, there is nothing in Judge Roberts record to suggest that he will be pro-business as opposed to pro-limited government. In many cases one finds business leaders to be very pro-government if it suits their purposes, such as lobbying for special operating or tax subsidies or for trade protections. Third, and most important, what will be pro-business about Judge Roberts' opinion is not mentioned. He understands the business community's need for clear rules, for predictable enforcement. The current court often refuses to take cases that it needs to take to provide needed guidance and, in the ones it does take, creates open-ended rules that offer confused future guidance, encouraging more litigation, and reserving for the court future decision-making discretion with each new factual wrinkle. Judge Roberts may help the court focus on issues the business community needs decided and may help craft language that is more helpful when the cases are resolved. On this latter point, Judge Roberts ought to be able to put the language of his opinions on business cases in the context of the capital markets, a skill in which the current Court is deficient. In short he will not say uninformed (and at times silly) things about business operations on the edges of court rulings that cause problems with the application of the holding of the case and worse, perhaps, a lack of respect for the Court's expertise. The current court's lack of business expertise is most obvious in how it describes the effects of its holdings, when the court attempts to put its holdings in the context of American business operations, projecting the effects of its rulings. Obvious effects of a given holding are overlooked and described effects are fanciful. For examples of odd-ball language look at Justice Blackmun's footnote 17 in Basic v Levinson (on the effect of a "no comment" answer) or Justice Ginsburg's language on the misappropriation doctrine of insider trading in O'Hagan (the effect of notice to an employer). Better yet read Justice Souter's entire opinion straight-through in Virginia Bankshares v Sandberg and attempt to distill its holdings.
Judge Roberts will help the business community but not in the sense discussed in the financial press.
July 26, 2005 | Permalink
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