Mass Tort Defense

Federalists Debate Business in Supreme Court

Let's get out of the weeds today and think lofty thoughts. The Federalist Society's 2012 National Lawyers Convention was held earlier this month in Washington, D.C.  Readers may know that the society is an organization of 40,000 lawyers, law students, scholars, and other individuals "who believe and trust that individual citizens can make the best choices for themselves and society."

The topic of this year's convention was: The Future of U.S. Constitutional Law in the Supreme Court. The Convention addressed the fact that, at the present time, the Supreme Court seems closely divided on many foundational topics in constitutional law, such as federalism, separation of powers, and religious liberties.

One interesting panel was - Litigation: Business Cases in the Roberts Court: Perception and Reality,  which included practitioners, professors, and judges.  Some participants argued that this Court has issued pro-business decisions in nearly every major case, while others noted that the issue was a bit more complex.  For example, was Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), a pro-business decision, or better seen as a victory for free speech?   Other speakers observed that a significant part of the Court's docket is in fact business v. business cases, so, by definition, a business will prevail.  

Still other panelists noted that many of the pro-business decisions arose in the class action context, which the Court had left inadequately tended and which saw numerous splits in the lower courts.  It will be interesting to see what the Court does in Comcast on Daubert, and in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 81 U.S.L.W. 3258 (U.S. argued 11/13/12) on materiality.

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Sean P. Wajert of Shook, Hardy & Bacon LLP