September 18, 2010
The Roberts Court's Business Jurisprudence
Posted by David Zaring

I'm back from Case Western, which held a conference on the Roberts Court's business law, with papers from Matt Bodie, Brian Fitzpatrick, Thom Lambert, and Adam Pritchard, and commentary from a cast of worthies.  One animating question that occupied many of the conference attendees is whether the Court is simply anti-court (that is, anti-plaintiff because they don't think businesses should be sued in court), or if there is more to be said.  It could be that in antitrust, error reduction is animating the Court, for example, and Justice Breyer has used error reduction language in the Credit Suisse case.  It could be that it is empowering human resources as the delegates who must apply employment law in lieu of district courts.  We explored these and other possibilities over the course of the conference, and the whole process turned me from a skeptic into .... maybe a slightly less skeptical skeptic about the Supreme Court.  

I often think that paying attention to the Supreme Court is a good way to distract oneself from what the federal courts actually do.  But it is true that there's a bit more happening in the Court related to business.  There's a growth in antitrust, and the securities cases that are being taken are pretty interesting, even if they aren't increasing apace.  So it could be that the Roberts court does turn into a business Court, instead of a place for culture wars and so on.

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