June 25, 2011
More Pro-Business Decisions From the Roberts Court
The question of whether the Roberts Court can properly be characterized as pro-business is back in the news, with four recent cases taking center stage. In Wal-Mart v. Dukes and AT&T v. Concepcion the Court limited the availability of class actions. As my colleague Will Huhn notes, in American Electrical Power Co. v. Connecticut:
[T]he Supreme Court held that the Clean Air Act preempts the federal common law of nuisance, and accordingly the states lost on that point. The Court did not reach the question of whether the state law of tort is preempted by the Clean Air Act, and the case was remanded to the lower courts for a ruling on that issue.
(For an arguably related story, see: "Nuclear Regulatory Commission Colluded with Industry to Weaken Safety Standards.")
Finally, in Janus Capital the Court again chipped away at Rule 10b-5. As Jay Brown describes it: "The opinion ... is a piece of political decision making, more in line with a legislature than a court."
An Associated Press story noted:
Robin Conrad, the head of the legal arm of the U.S. Chamber of Commerce, dismissed the notion of a pro-business court as "a silly myth" that was undercut by a record of as many victories as losses in cases of interest to the Chamber of Commerce. Yet Conrad acknowledged that the group won the three cases — the class-action disputes and a successful effort to block a climate change suit by six states — that were "easily the most important business cases of the term."