Sunday, February 8, 2009
What Kind of Business-Friendly Court? Explaining the Chamber of Commerce's Success at the Roberts Court, by David L. Franklin, DePaul University - College of Law, was recently posted on SSRN. Here is the abstract:
Since the Roberts Court was formed in January 2006, the Court has decided 38 cases in which the Chamber of Commerce of the United States filed a brief either as a party or amicus. In these 38 cases, the party supported by the Chamber ended up prevailing in 28, for a winning percentage of almost 74 percent. Nor did the parties supported by the Chamber typically squeak by with narrow victories-twelve of the Chamber's 28 wins were by unanimous votes, and in eight more the Chamber or the party it supported got seven or eight votes.
As the Chamber's success rate illustrates, there is little doubt that the Roberts Court is, broadly speaking, a business-friendly Court. The questions that remain have to do with what kind of a business-friendly Court it is. In what contexts is the Court especially receptive to the arguments and interests of business, and for what reasons? In what areas has the Court remained relatively unreceptive, and why? Are the Court's pro-business leanings best explained in terms of legal doctrines or ideological preferences?
Part I of this article describes the Chamber's litigation efforts generally and its participation as amicus in the Supreme Court in particular, and canvasses the existing literature on amicus brief efficacy in order to put the Chamber's efforts and outcomes in perspective. Part II is the main part of the article; it examines the Court's decisions and the Chamber's briefs in five key areas-preemption, punitive damages, arbitration, pleading standards, and employment discrimination-and finds in these areas a consistent theme of skepticism about litigation as a mode of regulatory control. The article concludes with a brief comment about the implications of this preliminary finding for future research.