The Supreme Court is Open for Business
posted by Frank Pasquale
Doug Kendall argues that a lot of recent big Supreme Court cases share only an ideological, and not a legal, consistency:
It is extremely hard to reconcile what the court has done in cause-of-action cases like Stoneridge with its approach to pre-emption cases like Rowe, Riegel, and Preston. In the cause-of-action cases, the court says Congress must unmistakably express its intention to allow people to go to court to enforce federal mandates. If Congress isn’t crystal-clear, potential plaintiffs are out of luck. But in the pre-emption cases, the court seems untroubled by a lack of clarity on Congress’ part, ruling that federal law pushes aside state actions or remedies when it’s not at all certain that’s what Congress so intended. There’s one thing these approaches do have in common: They both favor business interests.
Is the Supreme Court using law as a means to an end? As always, comments are open for a less skeptical interpretation. The politics of Supreme Court nominations over the past few years remind me of David Kuo’s book Tempting Faith, which argued that while cultural issues may be on the surface, the biggest political initiatives in the executive branch have been economic. Perhaps the same could be said of the judicial branch.
March 11, 2008 at 9:44 pm
Posted in: Supreme Court
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Responses (5)
Liberals are antidemocracy and prolitigation - March 13, 2008 at 10:01 pm
Or it may be a bias in favor of less litigation.
Federal law that creates uniformity reduces the number of laws applicable to a subject matter.
Fewer causes-of-action means, well, fewer causes-of-action.
That means less litigation. And more politics.
You could call it a bias in favor of politics over litigation.
Liberals are antidemocracy and prolitigation - March 13, 2008 at 10:02 pm
Or it may be a bias in favor of less litigation.
Federal law that creates uniformity reduces the number of laws applicable to a subject matter.
Fewer causes-of-action means, well, fewer causes-of-action.
That means less litigation. And more politics.
You could call it a bias in favor of politics over litigation.
MJG - March 14, 2008 at 9:51 am
Not saying it’s a perfect explanation, but most of the cause-of-action cases rely on an implied right of action – so the court says that we need a rather strong implication.
In preemption cases the supremacy clause makes the normative distinction (federal trumps state law), and since this is entirely Congress’s prerogative, the Court has chosen a low baseline.
And the preemption cases are often awkward. In the big banking preemption case from a term ago, Watters v. Wachovia Bank, the Court held that federal law allows the OCC to preempt state regulations. The lineup? Ginsberg writing for the majority, with Stevens dissenting and writing for Scalia and Roberts (with Thomas recused). Many argue that that decision was very good for big business and bad for consumers (Stevens made the point in his dissent), but the judicial politics seems quite off.
Michael Levin - March 14, 2008 at 1:33 pm
It isn’t hard to reconcile the “cause of action” cases with the preemption cases at all. It’s about closing the courthouse door to individuals and stripping individual protections in favor of business interests.
In cause of action cases, the court is interpreting whether a federal statute, for instance the Civil Rights Act of 1866 provides a remedy to enforce a certain provision of the law, in cases where the statute doesn’t say in black and white there is a remedy. For decades, the court recognized that if there’s no mechanism to enforce a law through a private right of action, the law has no teeth and essentially can’t be enforced. So a private right of action would be inferred into the statute. However, recently the trend has gone back and unless the law clearly states that the federal statute gives the plaintiff the right to sue to enforce the law, the law is unenforceable and the plaintiff is screwed.
In preemption cases, it’s the flip side of the same coin. For instance, in Riegel v. Medtronic, the issue was whether the premarket approval process that the FDA goes through before a Class III medical device is released on the market preempts, or prevents, a person from suing under a state’s common law (i.e., negligence or product liability claims). Basically they said that the FDA goes through an exhaustive process, and therefore even if the FDA didn’t do its job diligently enough to protect the public, the public still has no legal right if that foley catheter explodes in your body, or if the knee joint falls apart inside the patient on the first day.
The common thread is screwing the little guy and protecting corporations. The end result is you can’t sue under a federal statute which doesn’t provide a cause of action, and you’re out of luck under state common law also.
For all the conservative thinkers out there who think this is a good idea, I just hope that your wife, your husband or your kids aren’t ever maimed by a defective device that the sleeping giants over at the FDA could have kept from getting on the market. If they were, and you couldn’t sue because a judge who your candidate appointed shut the courthouse door on you…well, that would just be deliciously ironic, wouldn’t it?
Karl Marx - March 16, 2008 at 5:50 am
The common thread is screwing the little guy and protecting corporations.
Except the little guy owns stock, and works at a corporation, and wants his kids to go to good schools so they can work for and one day manage corporations, and coprorations use their wealth to start up foundations that help little guys.
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