November 08, 2009
Jones v. Harris in person
Posted by William Birdthistle

For a final post on Jones v. Harris (not in conjunction with last week's Forum but with my guest visit, which ends soon), I’ll close with a few observations from my visit to the oral argument last Monday.

At 7:30 a.m. on Monday, the line for members of the Supreme Court bar was longer than the public queue and filled with lawyers who regularly represent both the plaintiffs and the defendants in these kinds of lawsuits.  The plaintiffs’ bar seemed to be hungrier, having won places at the front of the line, but their adversaries further back were wearing many more Hermes ties.

The degree of security was far higher than on my only previous visit to the Court several years ago, with armies of uniformed and plain-clothed officers, several layers of metal detection, and close examinations of mechanical pencils. 

After the argument, almost everyone in the audience repaired to the courthouse plaza to mill about, chat, and debrief.  The affair had the distinct feel of a wedding reception, with lots of nodding and smiling at vaguely recollected acquaintances.  Meanwhile, the oral advocates gave interviews before a bank of press cameras and microphones, with Nina Totenberg firmly in control. 

I noticed that the ICI representatives stood shoulder-to-shoulder with the representatives for Harris Associates at the press conference, as they have throughout much of this litigation.  But I wonder whether that alliance is entirely free from conflict.  When the advocate for Harris conceded during oral argument that the institutional/retail comparison could be relevant, he may have been thinking specifically of the trial judge in this case, who has already issued favorable rulings for Harris and to whom the case might once again be remanded.  But the industry would have to defend the higher standard against unknown future trial judges, who might be far more Posnerian and far less favorable to future defendants.

For more on the possible procedural implications from this case, take a look at Todd Henderson's new piece called Justifying Jones.

And for an excellent play-by-play account of the proceedings, see this report from John Rekenthaler of Morningstar, who arrived at 5:25 a.m. for his place in line.

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