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 ...
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» Miers and business, again from Ideoblog ...
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Comments (11)

1. Posted by Christine on October 20, 2005 @ 8:17 | Permalink

I don't know what the media thinks that "corporate lawyer" means. Is it someone who works at a big firm, as opposed to Legal Aid or the ACLU? I don't know any commercial litigators who would describe themselves as "corporate lawyers."


2. Posted by Beldar on October 20, 2005 @ 8:26 | Permalink

Ms. Miers didn't say she was "an expert" in any (much less all) of those specific subjects, now did she, Professor Smith? However, I'd be willing to place a good-sized wager that she'd know how to deal with an opposing counsel who puts words into a witness' mouth just so counsel can try to make those words look like an exaggeration. I hope that wasn't your intention, sir, but rather that you were cautioning lay folk against drawing an inference of specialized expertise that the nominee herself has not claimed.

As you've earlier appropriately noted, Ms. Miers' mix of cases reflects a "solid" cross-section of business litigation, which in turn is likely to reflect a solid cross-section of the real-world problems facing businesses. I gather that Mike McConnell, for example, may justly claim to be a First Amendment religion clauses expert, with deep experience in that subject. Before going on the circuit court bench, however, he almost certainly lacked the breadth of experience that Ms. Miers has had, and it will be many years before he will have the depth across breadth of her experience either. That is to say, it will take quite a few years before he's likely to have bumped up against as many different sorts of issues as she has, even if neither of them has developed, or will ever develop, as deep a knowledge of them as he has of the First Amendment religion clauses. Some of us would have been willing to forgive that comparative disadvantage had Pres. Bush nominated him instead, but as it is, he'll have the chance to continue overcoming the burdens of having come to the bench from academic life.

Many practicing lawyers who support of Ms. Miers' nomination, of which I'm one, start out by being terribly concerned that there's no one currently on the Court who's had the kind of broad practice experience that she has had. There's no one who, as you quite aptly put it, is "fluent in the language and customs of business people in the United States."

There are, however, plenty of Justices on the current Court who have "deep insights about doctrines." Some of us suspect, however, that it's that infatuation with "deep insights" which results in opinions like those by the Hon. Anthony "Sweet Mysteries of Life" Kennedy; it is they who've created the opacities that you question Ms. Miers' ability to clarify. Well, color me transparently unimpressed with someone whose qualification to be on the Court is mainly "deep insights about doctrines," but who doesn't necessarily have the sense to come in out of the rain. One of the things I found particularly refreshing about Chief Justice Roberts' statements during his confirmation was that he seemed to have some common sense, notwithstanding his disclaimer of any grand overarching theories of constitutional interpretation or the like, and notwithstanding the rarified and unusual nature of his appellate law practice.

You write that she does not seem "passionate" about business law, and point out that she writes about and devotes attention to other topics. With due respect, Professor Smith, I think it's rather presumptuous, and probably false, to presume that her representation of business clients in business disputes fails to display passion. Some of us who do that for a living would argue, in fact, that fighting for clients in court over such issues, with multi-million dollar stakes and futures of companies on the line, displays rather more passion than writing articles, in which the stakes are usually, at most, getting published by a marginally more prestigious journal. Let's not confuse passion with self-aggrandisement, shall we? And frankly — no disrespect and no aspersions personally intended toward you, sir, for I know you not in particular — self-aggrandisement seems to be what a lot of academic life is about. At least that's one of the reasons some of us who also had the grades and law review editorships and judicial clerkships chose instead to go into private practice (a/k/a "the real world") rather than becoming law professors. Our passions took us there, rather than into the proverbial ivy-covered towers.

As for Ms. Miers' purported weaknesses in constitutional law: How many constitutional law cases of first impression, with a presidential election on the line, have you tried against a nationally recognized constitutional law expert in which you've whipped said expert at the district, circuit, and Supreme Court levels? Again, she doesn't claim to be an "expert" at that either. But that case, at least, speaks rather well for her ability as a generalist to pick up something as obscure as the Twelfth Amendment in a rush and under pressure, doesn't it?

Your evaluation shows some hints of fairness and competency. Unfortunately, in the end and with due respect, I still find it "monumentally disappointing" — not "elistist" as such, but rather more "snotty" and out of touch. That's okay -- it's a disability, a partial blindness, that's not necessarily the result of ill will or spite. But it does seem to be particularly common to Ms. Miers' critics from the academic world. If you detect more than a touch of snark in my comments, Professor, then I applaud you; I've been teasing law professors for their occasional snottiness since this nomination was announced, and you're far from the worst I've seen. I don't even blame you for it. You're just, as they say, "differently abled" than those of us who live and practice law in the real world.


3. Posted by mmmbeer on October 20, 2005 @ 9:29 | Permalink

You know that she can't be an expert in all of those areas since there are but a few that can claim much expertise in intellectual property and/or antitrust.

Even those that practice in those areas have difficulty putting their finger on what it is the court wants to--or is supposed to--say.


4. Posted by Christine on October 20, 2005 @ 9:51 | Permalink

Her list reminded me of law firms' practice listings in Martindale-Hubbell. Back in the day, law students would go to the career services office and pore over firms' NALP forms and Martindale listings to get a sense of what kind of practice law firms had (pre-Internet). A law firm would have a thick paragraph in M-H listing every conceivable kind of law practice, but when you showed up at the interview, you found out that the firm basically did insurance defense, but in the last 30 years someone (who may or may not still be at the firm) had once or twice touched on the practices listed.


5. Posted by Gordon Smith on October 20, 2005 @ 10:24 | Permalink

Beldar: "Ms. Miers didn't say she was "an expert" in any (much less all) of those specific subjects, now did she, Professor Smith?"

I never claimed that she said that. I was responding to the arguments by Cass and Starr that she should be on the Court because of "her significant experience in business law." What do they hope this experience will yield? "More attention to clarifying opaque doctrines" and "more thoughtful[ness]" about the implications of its decisions. (This is why I refer to "deep insights about doctrines." That appears to be what they hope for from Harriet Miers in the business area.)

I was trying to evaluate the likelihood that Harriet Miers would produce the benefits they are seeking. In my view, we can expect such results only if she has expertise in business law. Based on what I have seen, I can say that she probably is fluent in the language and customs of business, but probably not an expert in any single area of business law, much less in the various areas they identify in their editorial.

Does that mean she won't enhance the Court's business law profile? No. She may be the best of the bunch (though my money is on Roberts), but if we are interested in having the Court do better on business law issues, why not select someone who is among the top business lawyers in the country? Based on what I have seen, Harriet Miers is not even close to being in that group.


6. Posted by A Friend on October 20, 2005 @ 12:22 | Permalink

Beldar - Why are you getting personal, with all the snark and "snotty" and such? It's not like you to be so disagreeable when you disagree.


7. Posted by mmmbeer on October 20, 2005 @ 19:48 | Permalink

I think that Beldar is a whitehouse operative assigned to the rightwing blog comments to advocate on behalf of meirs (take a look at althouse's blog too). She is in need of an advocate AND someone to rehab her nomination.


8. Posted by Beldar on October 20, 2005 @ 20:16 | Permalink

mmmbeer, I'm not a WH operative — just a long-winded practicing lawyer and blogger, currently in my pajamas.

"A Friend (and I indeed think of you as one, I recognize your email address)": Snark's my reaction to hyperbole along the lines of "the total package is still monumentally disappointing." Academics haven't been the only folks being snotty (simultaneously insisting, "we're not elistist!" while muttering, "not from a top-tier law school," "weak on con law, which you really have to be smart to grasp," "not among the top business lawyers in the country," and so forth), but they've been awfully well represented amongst that group. And snark's the outlet for my frustration when I think of how very, very few if any practicing lawyers — and there in fact may be none — would fare substantially better if subjected to the kind of attacks that this practicing lawyer has been subjected to.

And anticipating what reaction that last sentence always brings: Yes, I agree, there are not hundreds, but certainly several dozen American lawyers with comparable civil litigation records, and some few, more than a handful, with objectively better ones. But how many of them also have the track record of service to family and church; to their partners through management experience in their firms; to both paying and pro bono clients; to local, state, and national bar organizations; and to their city, state, and federal governments? Of course none of these things are sufficient on their own to justify a Supreme Court appointment. But they're not nothing. Rather, they're appropriate indicators of the kind used in our past (e.g., with Justice Powell) to distinguish among potential nominees those whose character and experiences and personality and values add up to more than just the traits of a self-obsessed hired gun. As one who's done commercial litigation in firms large and small for 25 years, yet who lacks a tenth of Ms. Miers' non-litigation credentials, I'm well-placed to point out — nay, to admit — that "self-obsessed hired gun" is a characterization that, unfortunately, exactly describes a great many of those other top few dozen commercial litigators, some of whom are superb weapons but barely recognizable as humans.

Add in that which has been the instant objection to her nomination — that she's an oh-my-GAWD how-dare-he CRONY of the President! — but look at it without the pejoratives, viz: Of all those dozens of litigators, and of the very few of those with remotely comparable achievements outside litigation, which of them does this President actually know from years of close association under pressure? Then you're down to a set with one member. The "total package," in Prof. Smith's phrase, is actually a "monumentally" unique one. But by all means, let's forget that and go back to flyspecking her (or some nameless typesetter's or editor's) comma placement, or what she's written on a Hallmark card to Dubya.

Prof. Smith, thank you for the civil response and the use (or abuse) of your bandwidth, and forgive me for being confused. Phrases like "if she is an expert in anything" and "this may sound impressive to some people" somehow made me think you were being at least mildly critical of Ms. Miers for lacking something that we now all agree she hadn't claimed to have. To your further observations, I'd suggest that broad experience is indeed "significant experience," and we actually ought want broad rather than narrow, even at the expense of deep. Putting onto the Supreme Court bench a genuine expert in any one particular field of business law — say, the tax code, or the federal securities laws, or corporate governance — who nevertheless lacked the overall "fluen[cy] in the language and customs of business people" wouldn't be much of an improvement. That fluency — and in particular, the associated ability to recognize and understand the perspectives of business people, as one who's represented them, and as one who's actually run a medium-sized business — is going to bring something to the Court that cuts across all areas of business law and the civil disputes that arise from the commercial world. (Her familiarity with civil pretrial and trial and appellate procedure, which a transactional lawyer of any sort would lack, is an additional bonus.) If we're filling what you and I seem to agree is a current gap on the Court, wouldn't we be better to fill it with a generalist — one who may not yet be an expert, but nevertheless has a head start that, with the assistance of the parties' briefing and her clerks, can more rapidly approach (or at least recognize) deep expertise?


9. Posted by Gordon Smith on October 20, 2005 @ 21:38 | Permalink

Well, I have to say this for Beldar: he is at least making arguments for Miers on the merits. We disagree about the merits, but I appreciate hearing substance, rather than the crap that has been emanating from the White House.


10. Posted by supra for boy on January 1, 2012 @ 13:18 | Permalink

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