October 20, 2005
The Supreme Court on Business Issues
Posted by Gordon Smith

In today's W$J, Ron Cass and Ken Starr praise Harriet Miers for her experience with business law issues:

The Supreme Court needs help on business law issues. It needs to pay more attention to clarifying opaque doctrines and needs to be more thoughtful about the implications of its decisions. It is especially telling that the court found time to decide an issue that will determine what share of her ex-husband's estate should go to Anna Nicole Smith -- the 26-year-old Playmate who married an 89-year-old oil billionaire -- but not time to hear the Microsoft case.

Business organizations such as the U.S. Chamber of Commerce, which alone represents over three million business enterprises, have praised Harriet Miers's nomination. They -- and we -- value her significant experience in business law. Certainly, this is not the only consideration in her confirmation process, but the inevitable attention to other, politically charged issues should not obscure the importance of business expertise to the court and ultimately to the nation.

Is Harriet Miers a business law maven? That certainly is the Administration's storyline. I decided to consult her Senate questionnaire to gather some evidence:

  • Item #7: Employment Record -- She lists several board of directors positions.
  • Item #13: Published Writings, Testimony and Speeches -- Very little of substance here, and only a small portion of that focuses on business. Her student note -- which, unbelieveably, is the subject of close examination by the Dallas Morning News -- is a casenote on tort damages for "mental suffering." (Do you consider that "business law"? Well, it isn't constitutional law, but it isn't the sort of business law matter that Cass and Starr are discussing.)
  • Item #15: Legal Career -- She describes her litigation experience in expansive terms:

Over the years, I have handled litigation matters including antitrust, class action, contracts, family, First Amendment, immigration, intellectual property, products liability, real estate, mortgage lending, and securities law. My clients have ranged from multi-billion dollar international corporations to individuals. Many of my clients, both individuals and corporations, required a range of services, including litigation, transactional issues, and general legal counseling.

This doesn't tell us much about her level of business sophistication. I worked as a summer associate at four different law firms, and I could write an honest description of those summers that would not differ much from this paragraph. What we really want to know is more detail about her cases. Some of that comes a bit later in the questionnaire, when she is asked about cases tried to verdict and appellate cases:

I have identified eight cases that were tried to verdict. I was lead counsel or sole counsel in four, lead local counsel in one, and associate counsel in three.

I recall arguing the following appellate cases: Jones v. Bush, 244 F.3d 144 (5th Cir. 2000), cert. denied, 531 U.S. 1062 (2001); Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25 (Tex.App.-San Antonio, 1998); Microsoft Corp. v. Manning, 914 S.W.2d 602 (Tex.App.-Texarkana 1995); Thanksgiving Tower Partners, et al. v. Anros Thanksgiving Partners, 64 F.3d 227 (5th Cir. 1995); Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir. 1985); In re Grand Jury Proceedings, Misc. No. 1331, 712 F.2d 973 (5th Cir. 1983); Southwest Securities, Inc. v. Sungard Data Systems, Inc., 2000 WL 1196338 (Tex.App.-Dallas 2000).

We cannot discern from the answers how many of the trials were on business law issues, but of the seven appellate cases, five could be classified as business law cases. Of course, this answer does not include settled cases, and Miers notes that many  of her commercial cases settled.

  • Item #19: Teaching -- She lists one class that she taught at SMU in Trial Advocacy.

Looking at what we are told about her practice history, my guess is that Harriet Miers is fluent in the language and customs of business people in the United States. Although her practice was not extraordinary, it was solid. On the other hand, she does not seem at all passionate about business law. When she is not engaged in billable work, she mostly pursues politics, not business. When she writes and teaches, her focus is on litigation and legal ethics, not business law.

Will she assist the Court in "clarifying opaque doctrines"? Will she be "more thoughtful about the implications of [the Court's] decisions" than the current justices? Based on the evidence at hand, it's impossible to draw that inference. Harriet Miers has been described as a "technocratic" lawyer, someone who is very attentive to the details. (Commas excepted.) This skill would serve her well in commercial litigation, but it provides little aid in crafting legal doctrines, whether in business or constitutional cases.

Given her weakness in constitutional law, her background in business law looks like a strength. On the other hand, her nomination hardly merits praise for bolstering the Court's business law expertise. If that were the primary goal, I suspect that President Bush could have found hundreds of more qualified candidates. In the end, the total package is still monumentally disappointing.

UPDATE: One more thought on Harriet Miers' business qualifications. This is from her questionnaire:

Over the years, I have handled litigation matters including antitrust, class action, contracts, family, First Amendment, immigration, intellectual property, products liability, real estate, mortgage lending, and securities law.

This may sound impressive to some people, but she cannot be an expert in the substantive law of  all of these areas. Most lawyers would do well to develop expertise in one or two of these areas. When I was in practice, we used to play off the Blue Brothers movie by joking, "We practice both kinds of law ... corporate and securities." My guess is that Harriet Miers is not an expert in any of the foregoing subject matter areas. If she is an expert at anything, she is an expert in the litigation process. Nothing wrong with that -- it's how many lawyers make their livings -- but she is unlikely to have many deep insights about doctrines in any substantive area of business law.

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» Senate Democrats Meet Nominee Miers from Unpartisan.com Political News and Blog Aggregator ...
"Supreme Court nominee Harriet Miers met with Senate Judiciary Committee Democrats Monday. Hearings o ..." [more] (Tracked on October 20, 2005 @ 1:59)
» Senate Democrats Meet Nominee Miers from Unpartisan.com Political News and Blog Aggregator ...
"Supreme Court nominee Harriet Miers met with Senate Judiciary Committee Democrats Monday. Hearings o ..." [more] (Tracked on October 20, 2005 @ 2:01)
» Miers and business, again from Ideoblog ...
"Ron Cass joins with Ken Starr in today’s W$J to emphasize Miers’ business credentials: Business orga ..." [more] (Tracked on October 20, 2005 @ 5:43)
» Miers and business, again from Ideoblog ...
"Ron Cass joins with Ken Starr in today’s W$J to emphasize Miers’ business credentials: Business orga ..." [more] (Tracked on October 20, 2005 @ 5:45)
» Miers on business from Houston's Clear Thinkers ...
"Larry Ribstein notes in this post that, based upon Harriet Miers' investment track record, it may be ..." [more] (Tracked on October 20, 2005 @ 7:17)
» Miers on business from Houston's Clear Thinkers ...
"Larry Ribstein notes in this post that, based upon Harriet Miers' investment track record, it may be ..." [more] (Tracked on October 20, 2005 @ 7:19)
» Miers and Business Law: from The Volokh Conspiracy ...
"Over at The Conglomerate, Gordon Smith takes a look at whether a Justice Miers would help the Suprem ..." [more] (Tracked on October 20, 2005 @ 13:28)
» Miers and Business Law: from The Volokh Conspiracy ...
"Over at The Conglomerate, Gordon Smith takes a look at whether a Justice Miers would help the Suprem ..." [more] (Tracked on October 20, 2005 @ 13:30)
» Miers and Business Law from ProfessorBainbridge.com ...
"Erick writes:Miers will be a better business conservative than O’Connor, I’m told. She has a busines ..." [more] (Tracked on October 20, 2005 @ 18:58)
» Miers and Business Law from ProfessorBainbridge.com ...
"Erick writes:Miers will be a better business conservative than O’Connor, I’m told. She has a busines ..." [more] (Tracked on October 20, 2005 @ 18:58)
» Miers and Business Law from ProfessorBainbridge.com ...
"Erick writes:Miers will be a better business conservative than O’Connor, I’m told. She has a busines ..." [more] (Tracked on October 20, 2005 @ 19:00)
» Miers and Business Law from ProfessorBainbridge.com ...
"Erick writes:Miers will be a better business conservative than O’Connor, I’m told. She has a busines ..." [more] (Tracked on October 20, 2005 @ 19:02)
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