July 01, 2010
Ribstein on the Courts and Business
Posted by David Zaring

I've noted that the Supreme Court, like most courts, gets involved in business regulation very late.  I think this makes its role a combination of not so important and a bit unsettling.  You know, if we'd known that honest services fraud had to be limited, it might have been nice to know that before two decades of broad honest services prosecutions.  And if the presumption against extraterritorial securities regulation was so strong, perhaps leaving Henry Friendly's standard on the books for 40 years was perhaps not the best way to stabilize business expectations.  But mostly I think that it is easy to overstate the Court's role in setting these rules, because it gets involved so late.  Bainbridge and I have had a chat about it.

Larry Ribstein's pretty good Forbes column makes the case that the Court is acting a bit more proactively, and indeed, in a crisis, countermarjoritarianly, as courts should:

In a single term, despite widespread popular support for punishing and restricting corporations and their agents, the Court admonished Congress that it had to respect the structure of government and draft criminal statutes clearly, noted the dangers of court interference in business decisions, restricted the international reach of the securities laws and, perhaps most importantly, ensured that business’s voice would be heard in future lawmaking. The Court demonstrated that it can be a good friend to business in bad times.

I think it is an interesting way to characterize what has been going on. When I see appellate opinions, I often think, "late and sort of irrelevant."  I'd stand by that, for this term.  But I suppose that if the Supreme Court manages to express a powerful mood, and changes things measurably for future business, perhaps I should keep quasi-live blogging its business decisions after all (Gordon has some more considered observation here).  More from Larry here.

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