Friday, March 21, 2008

The Supreme Court and the Chamber of Commerce

This past Sunday, the New York Times Magazine printed an article by my GW colleague Jeffrey Rosen provocatively titled, "Supreme Court, Inc.: How the nation's highest court became increasingly receptive to the arguments of American business." In the article, Rosen describes a decades-long effort by the U.S. Chamber of Commerce to change legal jurisprudence in this country such that the Chamber's members (that is, large American corporations) would be more likely to win in court -- and by implication, less likely to be sued in the first place.

Rosen's article is characteristically well written and engaging, and I learned a lot from it. One can reasonably question whether Rosen puts too much emphasis on the importance of Supreme Court litigators, since he spends a great deal of time describing how the Chamber went about hiring the most brilliant legal minds it could find -- many, like Rosen, former Supreme Court clerks and thus presumptively brilliant. These star litigators then went on to win various cases in front of the Court. One of these stars was so "dazzling" in an argument before the Court that her side won in a unanimous decision. I'm sure that I am not alone in suspecting that 9-0 decisions do not hinge on the performance of superstar litigators; but even if my suspicion is right that the Court was going to find in favor of a major corporation in such a case no matter who did the talking, that could merely mean that Rosen is otherwise correct that the Chamber of Commerce has succeeded in changing the law and the composition of the Court to the liking of big business.

Rosen certainly caught my attention with a quote from Ralph Nader to the effect that Nader's young public-interest lawyers are quitting because they're tired of losing so often. Rosen's cause-and-effect might be a bit overstated, in other words, but there is probably a strong case to be made that the legal landscape (including the Supreme Court) has become much less receptive to 60's-style public interest arguments and more receptive to the arguments of the Chamber's members.

I was, however, caught a bit off guard by Rosen's description of the Court's "pro-business jurisprudence" as reflecting a consensus among "liberal and conservative elites about the value of free markets." He suggests that these elites have "come to share a relatively laissez-faire, technocratic vision of the economy" and that this vision explains the turn in favor of big business. Discussing one example, Rosen quotes his source at the Chamber of Commerce as describing Arthur Andersen's win before the Court (overturning a criminal conviction for document destruction related to Enron) as "a very important win for big business."

We thus have at least four concepts being used interchangeably here: pro-big business, pro-business, pro-free markets, and laissez-faire. This is not the forum in which to explore all of the ways in which these things differ (for two takes on this from the right side of the political spectrum, see here and here), but it should at least be obvious that big businesses and small businesses often have conflicting agendas, that businesses of all kinds have incentives to make markets less "free" (if only because more competitive markets tend to have lower profits than less competitive markets), and that laissez-faire has no coherent meaning because the laws that make markets work (contract laws, tort laws, criminal laws, securities laws, corporate laws, and on and on) are the creations of government.

These points are extraneous to Rosen's story, but it would be helpful if commentators (and Rosen is hardly alone here) would cease conflating the interests of General Motors with free markets, capitalism, and the American Way.

Posted by Neil H. Buchanan


Tam said...

As an example, it's quite possible that a court decision in the 90's ruling that the packaging of IE with Windows did not violate antitrust laws would be bad not only for business in general, and big businesses more specifically, but big businesses in the web browser industry most specifically.

Indeed, antitrust law is a good example because it also illustrates your point re: the paradox of laissez-faire, which is that companies acting in their own interest seek to make their markets less free, which is bad for business (except that of the offending company), small or big, and bad for capitalism.

Ironically, as Prof. Rosen points out, "[b]usiness groups were enthusiastic about [Robert] Bork . . . because of his skepticism of vigorous antitrust enforcement."

Similarly, the NYSE floor recently broke out in cheers when the Scarlet Number Scandal broke, I suppose because those people identified with the interests of the corporate criminals that Spitzer was prosecuting. The thinking, I guess, is simply "Wall Street good, Spitzer bad," apparently with no consideration of the possibility that enforcing the rules by which everyone has ostensibly agreed to play is actually good for business, whatever that means.

For a good example of the economic populist jurisprudence to which Prof. Rosen refers, see Justice Brandeis's dissent in Liggett v. Lee, 288 U.S. 517 (1933).

Michael C. Dorf said...

Perhaps a more precise formulation of Rosen's point would be that the Court has endorsed the view---favored by much of the business community but especially by directors and officers of publicly traded corporations---that lawsuits against corporations generally do more harm than good. For a presentation I recently gave at a law firm, I briefly reviewed the Supreme Court's business docket and found, to my surprise, that the increase in the number of business cases the Court has taken is mostly a result of more cases in which small fry (e.g., alleged discrimination victim, tort plaintiff, shareholder) sues big corporation. The docket for cases that are the bread and butter of litigation practice in big law firms---one corporation suing another---seemed about the same size as under CJ Rehnquist. So Rosen is onto something here in finding an ideological valence to these cases, just as Neil is right to question the equation of bad-for-corporate-management with bad for business more broadly.

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