October 27, 2009
Corporate Law at the Court.
Posted by William Birdthistle

Thank you, Gordon, for your kind welcome back!  I'm delighted to return in time for oral arguments in Jones v. Harris on Monday, November 2 -- and for a Conglomerate Masters Forum on the case next week.  Obviously, I'm eager to discuss the case right away but will do my best to avoid stepping on the substantive discussion that we'll be having in these pages presently. 

Instead, I'll spend the remaining days of this week discussing some broader issues relating to the Court's unusually heavy corporate docket this Term.  As Adam Liptak of the New York Times and others have noted, the Court has recently granted certiorari in a remarkable array of business cases, including:

  • Citizens United v. FEC (the constitutionality of limiting corporate political contributions)
  • Bilski v. Kappos (the patentability of investment strategies)
  • Merck v. Reynolds (the deadline for filing securities fraud lawsuits)
  • Free Enterprise Fund v. PCAOB (the constitutionality of PCAOB)
  • Skilling v. United States (the conviction of former Enron CEO Jeffrey Skilling)

Given the momentous financial events of the past year or two, perhaps its not surprising that the judiciary is taking an opportunity to join the executive and legislative branches in delving into these issues.  The coming Term might give an early glimpse of two developing phenomena.

First, our newest justice -- Sonia Sotomayor -- could have a unusually large impact early in her tenure thanks to her relatively high level of corporate experience.  In addition to representing corporate clients in private practice, Justice Sotomayor heard large numbers of corporate cases as a trial and appellate judge in Manhattan.  In fact, she previously ruled on a Section 36(b) claim alleging excessive fees in mutual funds very similar to the claim in Jones v. Harris.  (If it's any harbinger of her ruling in Jones, which I doubt, her panel ruled against the shareholders and in favor of the investment adviser.)

Second, with the White House and Congress currently in Democratic hands and both considering (albeit with a little less enthusiasm these days than a few months ago) fairly extensive financial legislation, conservative and/or pro-business groups might increasingly turn to the federal courts, particularly the Supreme Court, to overturn that legislation.  (Will we be in for a reprise of the pre-1937 Supreme Court?)

This Term at the Supreme Court promises to be a particularly fascinating one for anyone interested in corporations and corporate law in the United States.

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