Supreme Court Update: Decisions from 2009

01 September 2009 Publication

While business cases perhaps do not typify the popular culture wardu jour, they are no less significant. As one commentator noted in a 2008 analysis of the Court's recent opinions,

Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people's daily lives than the often symbolic battles of the culture wars.

– Jeffrey Rose, Supreme Court Inc., N.Y. TIMES MAG. (March 16, 2008).

A few recent and select culture-war cases aside, the Roberts Court has been widely heralded as business-friendly. See, e.g., Tony Mauro, Supreme Court Continues Pro-Business Stance, LEGAL TIMES (Feb. 21, 2008); Greg Stohr, Alito Champions Business Causes in First Full High-Court Term, BLOOMBERG (June 26, 2007) (referring to the 2006-07 Supreme Court term as "what may have been the most pro-business U.S. Supreme Court term in decades"); Robert Barnes & Carrie Johnson, Pro-Business Decision Hews to Pattern of Roberts Court, WASH. POST (June 22, 2007) (describing a case as another "victory for business in what has been a resoundingly successful year before the nation's highest court"). Observers have noted, for example, the U.S. Chamber of Commerce's impressive success at the Court in recent years through direct litigation andamicusfilings. See, e.g., David L. Franklin, What Kind of Business-Friendly Court? Explaining the Chamber of Commerce's Success at the Roberts Court, 49 SANTA CLARA L. REV. 1019 (2009) (arguing that the Court's recent decisions are less about "pro-business" or "pro-defendant" jurisprudence, and more about "a broadly shared skepticism among the justices about litigation as a mode of regulation").

With a few important exceptions — most notably preemption — the Court's most recent term (which wrapped up in June) confirmed this view with a series of pro-business decisions in the areas of antitrust, pleading standards, arbitration and discrimination.

To read the full article, see Business Law Today, Vol. 19, No. 1, September/October 2009, American Bar Association©

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