EVENTS

Date:	Monday, October 27, 2008
Time:	6:30 PM -- 8:30 PM
Location:	Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036

 

Supreme Court's Business Orientation to Continue, Restrain Populist Trends

 

 

WASHINGTON, OCTOBER 30, 2008--The Supreme Court's orientation toward business matters will continue in its 2008 term, legal analysts said at the AEI Legal Center for the Public Interest on October 27. By taking up cases on liability, punitive damages, and preemption, the Court is playing a large role in shaping the business community. The Roberts Court's business orientation has been noted by many observers, including AEI's Michael S. Greve in his 2007 Federalist Outlook "Does the Court Mean Business?"

Mark Stancil, a former Supreme Court clerk and partner-elect at Robbins Russell, emphasized that any serious changes in law relating to business will occur gradually. Instead, Stancil suggested that "while it's certainly legitimate to focus a lot on the Supreme Court and what they do with respect to the business community, I think there is surprisingly little attention paid to the lower courts, how their judges are selected, what influences they're under, and what they do with respect to the business community, because I think that in the end . . . they have far more impact day-to-day on the business community than the Supreme Court ever will."

Another former Supreme Court clerk, New York University law professor Catherine Sharkey discussed the interplay between state and federal laws, referring to the "federalization" of punitive damages that the Supreme Court has endorsed. Citing Bush v. Gore, State Farm v. Campbell, Phillip Morris v. Williams, and Exxon Shipping v. Baker, Sharkey argued that the Supreme Court has laid out federal guideposts for excessive jury awards. Additionally, she explained that the business cases show that the Court is tilting towards federal preemption of state laws and liability rules.

Greve tackled the Supreme Court's environmental docket, predicting that the Court will rule against the environmentalist parties in at least four of the five pending cases. He suggested, however, that the decisions will be in limited in scope and probably not very meaningful. He commented that the state of environmental law is indicative of a central problem of governance in the United States: a consumption-oriented legal system based on the premise that the United States is a rich country that can afford to spread the wealth. The November election results will accelerate that tendency, he added. "The only institution that has not gone completely populist is the United States Supreme Court."

Andrew Pincus, a partner at Mayer Brown, asserted that the Court has been attempting to more narrowly define antitrust laws. He also examined the impact of the upcoming election on the Supreme Court.

--SARA WEXLER

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For media inquiries, contact Véronique Rodman at vrodman@aei.org or 202.862.4870.

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