<div dir="ltr">
<div class="">
<div class="">
<a href="http://www.nytimes.com/"><img src="http://graphics8.nytimes.com/images/misc/nytlogo153x23.gif" alt="The New York Times" hspace="0" vspace="0" align="left" border="0"></a>
</div>
<div class="">
</div>
</div>
<br clear="all"><hr size="1" align="left">
<div class="">May 4, 2013</div>
<h1>Corporations Find a Friend in the Supreme Court</h1>
<h6 class="">By
<span>
<a href="http://topics.nytimes.com/top/reference/timestopics/people/l/adam_liptak/index.html" rel="author" title="More Articles by ADAM LIPTAK"><span>ADAM LIPTAK</span></a></span></h6>
<div id="articleBody">
<p>
NOT long after 10 a.m. on March 27, a restless audience waited for the <a href="http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org" title="More articles about the U.S. Supreme Court." class="">Supreme Court</a> to hear arguments in the second of two historic cases involving <a href="http://topics.nytimes.com/top/reference/timestopics/subjects/s/same_sex_marriage/index.html?inline=nyt-classifier" title="More articles about Same-Sex Marriage, Civil Unions, and Domestic Partnerships." class="">same-sex marriage</a>. First, however, Justice Antonin Scalia attended to another matter. He announced that the court was throwing out <a title="Times article." href="http://www.nytimes.com/2013/03/28/business/supreme-court-rejects-antritust-suit-against-comcast.html">an antitrust class action</a> that subscribers brought against Comcast, the nation’s largest cable company. </p>
<p>
Almost no one in the courtroom paid attention, despite Justice Scalia’s
characteristically animated delivery, and the next day’s news coverage
was dominated by accounts of the arguments on same-sex marriage. That
was no surprise: the Supreme Court’s business decisions are almost
always overshadowed by cases on controversial social issues. </p>
<p>
But the business docket reflects something truly distinctive about the court led by Chief Justice <a href="http://topics.nytimes.com/top/reference/timestopics/people/r/john_g_jr_roberts/index.html?inline=nyt-per" title="More articles about John G. Roberts Jr." class="">John G. Roberts Jr.</a>
While the current court’s decisions, over all, are only slightly more
conservative than those from the courts led by Chief Justices Warren E.
Burger and William H. Rehnquist, <a href="http://www.nytimes.com/2010/07/25/us/25roberts.html?pagewanted=all">according to political scientists who study the court</a>, its business rulings are another matter. They have been, <a href="http://www.minnesotalawreview.org/articles/volume-97-lead-piece-business-fares-supreme-court/">a new study</a> finds, far friendlier to business than those of any court since at least World War II. </p>
<p>
In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in <a title="Text of the ruling." href="http://www.supremecourt.gov/opinions/09pdf/08-205.pdf">the Citizens United case</a>,
has shielded them from class actions and human rights suits, and has
made arbitration the favored way to resolve many disputes. Business
groups say the Roberts court’s decisions have helped combat frivolous
lawsuits, while plaintiffs’ lawyers say the rulings have destroyed
legitimate claims for harm from faulty products, discriminatory
practices and fraud. </p>
<p>
Whether the Roberts court is unusually friendly to business has been the subject of <a href="http://www.nytimes.com/2008/03/16/magazine/16supreme-t.html?pagewanted=all">repeated</a> <a href="http://www.nytimes.com/2010/12/19/us/19roberts.html?pagewanted=all">discussion</a>,
much of it based on anecdotes and studies based on small slices of
empirical evidence. The new study, by contrast, takes a careful and
comprehensive look at some 2,000 decisions from 1946 to 2011. </p>
<p>
Published last month in <a title="Home page of The Minnesota Law Review." href="http://www.minnesotalawreview.org/">The Minnesota Law Review</a>,
the study ranked the 36 justices who served on the court over those 65
years by the proportion of their pro-business votes; all five of the
current court’s more conservative members were in the top 10. But the
study’s most striking finding was that the two justices most likely to
vote in favor of business interests since 1946 are the most recent
conservative additions to the court, Chief Justice Roberts and Justice
Samuel A. Alito Jr., both appointed by President George W. Bush. </p>
<p>
The study was prepared by <a title="Biographical information." href="http://epstein.usc.edu/">Lee Epstein,</a> who teaches law and political science at the University of Southern California; <a title="Biographical information." href="http://www.law.uchicago.edu/faculty/landes">William M. Landes</a>, an economist at the University of Chicago; and Judge <a title="Biographical information." href="http://www.law.uchicago.edu/faculty/posner-r">Richard A. Posner</a>, of the federal appeals court in Chicago, who teaches law at the University of Chicago. </p>
<p>
In <a title="The opinion (PDF)." href="http://www.supremecourt.gov/opinions/12pdf/11-864_k537.pdf">the Comcast case</a>,
subscribers seeking $875 million in damages charged that the company
had swapped territory with other cable companies to gain market power
and raise prices. But the legal issue before the court was technical. It
concerned the sort of evidence needed to allow two million subscribers
in the Philadelphia area to band together as a class. </p>
<p>
Justice Scalia said the plaintiffs’ evidence was not enough to allow
them to proceed as a class. They could still, he said, pursue their
complaints individually. But the difficulty of mounting such suits over
insignificant sums would not make them very attractive to most lawyers.
</p>
<p>
The decision, however, went far beyond the Comcast subscribers. By reaffirming <a title="The opinion (PDF)." href="http://www.supremecourt.gov/opinions/10pdf/10-277.pdf">Wal-Mart v. Dukes</a>,
a 2011 blockbuster case in which the court threw out a large employment
sex discrimination class, the Comcast case limited class actions more
broadly. </p>
<p>
The question of whether plaintiffs have enough in common to sue as a
class is different from whether they deserve to win. The first question
is generally resolved early in the case. The second one may await trial.
</p>
<p>
But the Wal-Mart and Comcast decisions said the two questions often
overlap and may call for an early answer. The decisions essentially
required early scrutiny — by a judge, not a jury — of the ultimate legal
question in high-stakes cases, sometimes before all the relevant
evidence has been gathered. This delighted business groups, which have
pushed to limit class actions. </p>
<p>
“The court is telling lower courts across the country they really do
have to fulfill their gate-keeping function and keep these meritless
classes out of the courts,” said Kate Comerford Todd, a lawyer with the
litigation unit of the United States Chamber of Commerce. </p>
<p>
Justices deeply unhappy with a decision sometimes read their dissents
from the bench. It happens perhaps three times a year. Justice Scalia,
in remarks at George Washington University in February, said such oral
dissents were a way to call attention to a grave misstep. </p>
<p>
“I only do it in really significant cases,” he said, “where I think the
court’s decision is going to have a really bad effect upon the law and
upon society, a really, really big case.” </p>
<p>
By that standard, the dissenters thought the Comcast decision was very
bad indeed. It gave rise to two oral dissents, from the two senior
members of the court’s liberal wing, Justices Ruth Bader Ginsburg and
Stephen G. Breyer. </p>
<p>
Justice Ginsburg accused the justices in the majority of unseemly
judicial gamesmanship. She said they had reframed the legal issue in the
case so they could rule for Comcast. “Thus the plaintiffs had no
unclouded opportunity to brief and argue with precision the issue the
court decides against them,” she said. “And that’s not cricket.” </p>
<p>
THE Supreme Court decides one case at a time, and its jurisprudence is
the sum of incremental and sometimes inconsistent rulings driven by
quirky facts and shifting judicial alliances. </p>
<p>
The law, that is to say, does not always move in a straight line, and
the Roberts court’s decisions have not all favored corporations.
Employees suing over retaliation for raising discrimination claims have
fared quite well, for example. Nor has the court always been receptive
to companies claiming that state rules and injury awards from state
juries should be struck down because they are in conflict with federal
laws. </p>
<p>
But the court’s general track record, particularly in low-profile but
important procedural rulings, has been decidedly pro-business, said <a title="Biographical information." href="https://its.law.nyu.edu/facultyprofiles/profile.cfm?section=bio&personID=20130">Arthur R. Miller</a>,
a law professor at New York University. The upshot, he said, is that
businesses are free to run their operations without fear of liability
for the harm they cause to consumers, employees and people injured by
their products. </p>
<p>
“The Supreme Court has altered federal procedure in dramatic ways, one
step at a time, to favor the business community,” he said, by, among
other things, “increased grants of summary judgment, tightening
scientific evidence, rejecting class actions, heightening the pleading
barrier and wholesale diversions into arbitration.” </p>
<p>
In <a title="Professor Miller’s overview." href="http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-88-1-Miller.pdf">a despairing overview</a>
published last month in The New York University Law Review, Professor
Miller criticized many rulings from the Roberts court, including the
Wal-Mart decision, which rejected a class of some 1.5 million female
employees, and <a title="The opinion (PDF)." href="http://www.supremecourt.gov/opinions/10pdf/09-893.pdf">AT&T Mobility v. Concepcion</a>,
which allowed companies to escape class actions by insisting on
one-by-one arbitrations, even over trivial amounts, in standard-form
contracts. </p>
<p>
<a title="Biographical information." href="http://www.cadwalader.com/view_attorney.php?attorney=59">Jason M. Halper</a>,
a lawyer at Cadwalader, Wickersham & Taft in New York, said the
collective message of those and related cases was clear: “When you take
all of them together, the effect is certainly to make the use of class
actions much more difficult.” </p>
<p>
It is easy to understand why companies hate class actions. Once a class
is certified, the damages sought are often so enormous that the only
rational calculation is to settle even if the chances of losing at trial
are small. The costs of litigation — for lawyers, experts and the
exchange of information — are also far larger in class actions. And it
is not always clear that the plaintiffs, as opposed to their lawyers,
receive very much in the settlements. </p>
<p>
Plaintiffs’ lawyers, on the other hand, say class actions are the only
way to vindicate small harms caused to many people. The victim of, say, a
fraudulent charge for a few dollars on a billing statement will never
sue. But a lawyer representing a million such people has an incentive to
press the claim. </p>
<p>
“Realistically,” Professor Miller wrote, “the choice for class members
is between collective access to the judicial system or no access at
all.” </p>
<p>
So the Supreme Court’s rulings making it harder to cross the
class-certification threshold have had profound consequences in the
legal balance of power between businesses and people who say they have
been harmed. </p>
<p>
Arbitration, in which the two sides agree to resolve disputes outside of
court using informal procedures, is more complicated. </p>
<p>
Depending on how they are structured, arbitrations can offer benefits in
speed and cost to both sides, though the car rental companies or
cellphone stores that have customers sign nonnegotiable contracts
presumably do not have their best interests at heart. </p>
<p>
Minor claims in arbitration raise harder questions. In theory, there is
no reason that consumers and others could not join together in a mass
arbitration, just as they file class actions in court. </p>
<p>
But the AT&T Mobility decision limited that recourse for consumers.
The case was brought by a California couple who objected to a $30 charge
for what was presented as a free cellphone. They had signed a “take it
or leave it” form that required them to resolve disputes through
arbitration and barred them from banding together with others, whether
in arbitration or in court. </p>
<p>
The Supreme Court said the contract was lawful, and in doing so it gave businesses a powerful tool. </p>
<p>
“The decision basically lets companies escape class actions, so long as they do so by means of arbitration agreements,” <a title="Biographical information." href="http://law.vanderbilt.edu/fitzpatrick">Brian T. Fitzpatrick</a>, a law professor at Vanderbilt University, <a href="http://www.nytimes.com/2011/04/28/business/28bizcourt.html?_r=0">said on the day of the decision</a>.
“This is a game-changer for businesses. It’s one of the most important
and favorable cases for businesses in a very long time.” </p>
<p>
The central legal issues in the Wal-Mart, AT&T Mobility and Comcast
cases were decided by 5-to-4 votes. In each, the justices in the
majority were appointed by Republican presidents and the dissenters by
Democratic ones. </p>
<p>
Since World War II, the Minnesota Law Review study found, “justices
appointed by Republican presidents are notably more favorable to
business than justices appointed by Democratic presidents.” Indeed, it
said, “on the current court, no Republican-appointed justice is less
favorable to business than any Democrat.” </p>
<p>
That does not mean that the Roberts court’s pro-business decisions are
always decided by 5-to-4 votes. They are often lopsided or unanimous.
</p>
<p>
That is a consequence, Judge Posner said in an e-mail, of broader
trends: “American society as a whole is more pro-business than it was
before Reagan and this is reflected in the votes of Democratic as well
as Republican Supreme Court justices.” </p>
<p>
In March, for instance, the court <a title="The opinion (PDF)." href="http://www.supremecourt.gov/opinions/12pdf/11-1450_9olb.pdf">unanimously rejected</a>
an attempt by class-action lawyers in Arkansas to keep their case out
of federal court by promising that their clients would accept less money
than they might deserve. (The case had been filed in Miller County,
Ark., where courts, according to business groups, are notorious for
coercing large settlements from out-of-state defendants.) </p>
<p>
But sometimes unanimity masks division. The most important business decision of the current term, <a title="The opinion (PDF)." href="http://www.supremecourt.gov/opinions/12pdf/10-1491_8n59.pdf">Kiobel v. Royal Dutch Petroleum</a>,
severely limited human rights suits against corporations based on
charges of complicity in abuses abroad. All nine justices agreed that
the particular suit before them had to be dismissed, largely because
every significant aspect of the case was foreign: the plaintiffs were
Nigerian, the companies they sued were based in England and the
Netherlands, and the atrocities the companies were said to have aided
took place in Nigeria. </p>
<p>
Yet the court split 5 to 4 along the usual lines about how far to leave
the door open to similar suits. Chief Justice Roberts, writing for the
majority, suggested that it would be the rare case indeed that was
proper. Certainly, he said, it should not be enough that a multinational
corporation does business in the United States. “Corporations are often
present in many countries,” he wrote, “and it would reach too far to
say that mere corporate presence suffices.” </p>
<p>
Justice Breyer, in dissent, said such suits could play an important role
in bringing to justice “torturers and perpetrators of genocide.”
</p>
<p>
THE Minnesota Law Review study did not rely on the common political
science technique of coding each Supreme Court decision as conservative
or liberal. To draw its main conclusions, it relied on a simpler
formula, looking at cases with a business on one but not both sides.
(The adversary might be an employee, job applicant, shareholder, union,
environmental group or government agency.) </p>
<p>
A vote for the business was counted as a pro-business vote. </p>
<p>
By that standard, the study found, “the Roberts court is indeed highly
pro-business — the conservatives extremely so and the liberals only
moderately liberal.” Justices Ginsburg and Breyer, who spoke up in the
Comcast case, were only slightly less likely to vote for business than
the median justice in the survey but were in the bottom six for such
votes in 5-to-4 decisions. </p>
<p>
The arrival of Chief Justice Roberts in 2005 and Justice Alito in 2006
seem to have affected the behavior of the justices already on the court.
The probability that the other three more conservative members of the
court — Justices Scalia, Anthony M. Kennedy and Clarence Thomas — would
vote for business grew to 56 percent from 52 percent. And the
probability that Justices Ginsburg and Breyer would do so dropped to 32
percent from 38 percent. </p>
<p>
Scholars who look at doctrine rather than data also say there is something distinctive about the current court. </p>
<p>
“The Roberts court is the most pro-business court since the mid-1930s,” said <a title="Biographical information." href="http://www.law.uci.edu/faculty/page1_e_chemerinsky.html">Erwin Chemerinsky</a>,
the dean of the law school at the University of California, Irvine. “I
think this helps understand it far more than traditional liberal and
conservative labels.” </p>
<p>
Others are wary of generalizations. <a title="Biographical information." href="http://law.case.edu/OurSchool/FacultyStaff/MeetOurFaculty/FacultyDetail.aspx?id=83">Jonathan H. Adler</a>,
a law professor at Case Western Reserve University, said the Roberts
court was “not particularly welcoming to efforts by plaintiffs’ lawyers
to open new avenues of litigation, but it has not done much to cut back
on those avenues already established by prior cases.” </p>
<p>
Business groups have been enthusiastic litigants in the Roberts court.
Adam D. Chandler, a recent Yale Law School graduate and a Justice
Department lawyer, published <a title="Study by Adam Chandler." href="http://www.scotusblog.com/2013/04/cert-stage-amicus-all-stars-where-are-they-now/">a new study</a> along these lines on <a title="The Scotusblog site." href="http://www.scotusblog.com/">Scotusblog</a>
(noting that his views were not those of his employer). Looking at
friend-of-the-court briefs supporting petitions seeking Supreme Court
review over a roughly three-year period ended in August 2012, he found
that pro-business and anti-regulatory groups accounted for more than
three-quarters of the top 16 filers. </p>
<p>
“My data indicate that, as the court shapes its docket, it hears
conservative voices far more often than liberal ones, and the disparity
is growing,” he wrote. </p>
<p>
He found that the Chamber of Commerce was “the country’s pre-eminent
petition pusher,” with 54 filings in the period. It also had an enviable
success rate: the court grants one out of every hundred petitions; for
ones supported by the chamber, it granted 32 percent. </p>
<p>
Ms. Todd, the chamber lawyer, said her group would continue to be
active. The aftermaths of the Wal-Mart and AT&T Mobility decisions,
on class actions and arbitration, “are really where a lot of our focus
and resources are going right now,” she said. </p>
<p>
“These cases have a huge impact on the business community and on the American economy more broadly,” Ms. Todd said. </p>
<p>
The Comcast decision is just over a month old. But lower courts have
already relied on it to reject class actions contending harm from
defective trucks, poisoned drinking water, discrimination against
disabled workers, misrepresentations in insurance policies and
improperly docked wages. </p>
<p>
Some of the plaintiffs in those cases will now pursue their claims in
individual suits. But many will not, and the businesses accused of
wrongdoing will, thanks to the Roberts court, breathe a little easier.
</p>
<div class="">
</div>
</div>
<br clear="all"><br>-- <br>Art Deco (Wayne A. Fox)<br><a href="mailto:art.deco.studios@gmail.com" target="_blank">art.deco.studios@gmail.com</a><br><br><img src="http://users.moscow.com/waf/WP%20Fox%2001.jpg"><br>
</div>