Legal Commentary

Root on Business and the Roberts Court

By Jonathan H. Adler

Reason?s Damon Root makes a point that?s been made many times on this blog: Characterizing the Roberts Court as ?pro-business? is not very illuminating, nor does it fairly characterize the course of the Court?s jurisprudence.  The same Court that limited federal wetland regulation in Rapanos v. United States triggered a vast regulatory expansion in Massachusetts v. EPA. The same Court that found tort claims against vaccine manufacturers in Bruesewitz v. Wyeth found no obstacle to suits against automakers in Williamson v. Mazda Motor of America or pharmaceutical companies in  Wyeth v. Levine.  And so on.

Evaluating the Roberts Court?s approach to business cases requires a more nuanced analysis than simply counting up cases or focusing on a handful of high-profile opinions.  Changes in the legal environment, including the proliferation of regulatory statutes and administrative measures, alters the mix of cases the court considers over time.  In addition, not all ?wins? or ?losses? for business are created equal, either in terms of practical impact or legal significance.  There?s a difference between a broad opinion that overturns precedents or alters reigning legal principles from one that reaffirms the status quo.  Further, other forms of analysis ? such as evaluating how various decisions approach statutory interpretation, the federal-state balance, or the desirability of judicial intervention ? may have more explanatory power than simplistic labels like ?pro? or ?anti? business.

Full post as published by The Volokh Conspiracy on March 20, 2011 (boomark / email).