The decisions of the current Supreme Court are the friendliest to business of any court since World War II, according to a recent study published in the Minnesota Law Review.
In “How Business Fares in the Supreme Court,” Lee Epstein, William M. Landes, and Richard A. Posner discuss their analysis of nearly 2,000 decisions from 1946 through 2011. The study considered cases with a business on only one side. A vote in favor of the business was considered a pro-business vote.
The authors concluded that five of the ten Supreme Court Justices who have been most favorable to business currently serve on the Court, and two of them, Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr., ranked at the top of the list of the 36 most pro-business Justices in the study. The study found that after Roberts and Alito were appointed to the Court, the other three conservative Justices became more business-friendly in their decisions. The authors surmise that “the three may not have been as interested in business as Roberts and Alito and decided to go along with them to forge a more solid conservative majority across a broad range of issues.”
In an article about the Minnesota study that appeared earlier this month in the New York Times (http://nyti.ms/19krzbQ), Adam Liptak highlighted two areas in which the Supreme Court has recently exercised its pro-business view: (1) by protecting companies from class action lawsuits, and (2) favoring arbitration to resolve business disputes.
In March, the Court dismissed an antitrust class action that Comcast subscribers brought against the company, finding that the plaintiffs were not sufficiently cohesive as a class to allow the suit to continue as a class action. In that decision, Comcast v. Behrend, the Court affirmed its 2011 decision in Wal-Mart v. Dukes, in which the Court threw out a sex discrimination class action brought by a million and a half female employees. As Liptak noted in his article, “[t]he decisions essentially required early scrutiny-by a judge, not a jury-of the ultimate legal question in high-stakes cases [i.e., which party should prevail], sometimes before all the relevant evidence has been gathered.” Business groups, which have sought to limit plaintiffs’ ability to bring class actions, applauded the decision.
The Supreme Court has also given businesses extra protection in the area of dispute resolution. In AT&T Mobility LLC v. Concepcion, the Court found that a form AT&T required its customers to sign requiring the resolution of disputes through arbitration rather than in court was a valid contract. As Liptak notes, this decision empowered businesses by allowing them to shield themselves from class actions by way of arbitration agreements.
According to the Minnesota study, the Roberts Court is far friendlier to businesses than any of its recent predecessors. This blog will trace decisions of import from the Roberts Court and analyze the impact of these decisions on business.