Eugene Volokh's Blog, page 2758

Which Justices Vote Together?

(Jonathan H. Adler)

It's commonly assumed that Justices Scalia and Thomas are the two Supreme Court justices who are most likely to vote together.  However much that may have been true during Justice Thomas' first several years on the Court, it is becoming less true over time.   This past term, according to statistics collected by the folks at SCOTUSBlog, the two sets of justices most likely to vote together were the Chief Justice and Justice Alito (96.2%), and Justices Sotomayor and Kagan (94%).  Perhaps even more surprising, the Scalia-Thomas pairing was not even in the top ten most common pairings.

Businesses' Record Before the Court This Term

(Eugene Volokh)

My Mayer Brown LLP colleague Andy Pincus — one of the top business appellate lawyers in the country (and one of the top appellate lawyers in the country, period) — is testifying this morning before the Senate Committee on the Judiciary (full hearing web page here) about businesses' record before the Court this Term. His findings, among other things, are that businesses lost about as often as they won, contrary to the occasional reports that the Court is strikingly pro-business.

Naturally, any perspective on this area is necessarily pretty subjective, and different people can reach different conclusions about many aspects of the cases. But this analysis strikes me as a very helpful and important view of the matter, whether you agree with the bottom line or not.

Suggestions for your periodical reading list

(David Kopel)

Although on-line reading continues to grow, many people still enjoy old-fashioned printed periodicals. In the spirit of gratuitous advice, here are some suggestions for print subscriptions.

First of all, if you're conscientious about registering for the frequent flyer program every time you step on an airplane, you may accumulate a few thousand points on various airlines which you fly only occasionally. You'll never get to the level of a free ticket, but the points expire if you don't use them. So use them for magazine subscriptions. I've been enjoying the daily Wall Street Journal that way for several years, and have used low-level points for dozens of other year-long or half-year subscriptions over the past decades.

Second, there's a lot to be said for trying many different periodicals with one-time subscriptions. You may find a magazine that becomes indispensable for you (as The New Republic was for me, for about 15 years), but just reading something for a year or a half-year can broaden your knowledge, and then you can move on to something else.

Some category recommendations:

Newsweeklies: Back in the olden days of the 1970s, these were truly great. Then, the daily New York Times wasn't available outside of the New York area, and the Wall Street Journal was sparse on non-business news. Time and Newsweek, and to a lesser extent U.S. News & World Report, provided in-depth, thoroughly-reported stories of the major issue of the week, the deep inside of presidential campaigns, and so on. These days, it's hard to make a case for reading the remnants of those once-important magazines.

The Economist is still probably the most influential periodical in the world. If you read its U.S. coverage, you'll quickly discover that the analysis is not nearly so sharp and insightful as the omniscient tone would imply, and that the coverage has numerous blind spots and biases. Knowing how flawed the U.S. coverage is makes me question The Economist's accuracy on topics for which I don't know enough to judge the coverage. So in a sense, the less you know about something, the more useful The Economist is. For example, the latest issue had an article explaining that Poland is going full speed ahead with natural gas development via fracking. Because I previously had never thought about Polish natural gas, I learned a lot by reading the article. Overall, The Economist is still a strong source for weekly world news, as long as you don't take its editorial judgements too seriously.

If you read French, Courrier International is definitely worth a trial subscription. This Paris-based weekly takes stories from newspapers all over the world, and translates them into French. You'll get acquainted with many fine newspapers. I ultimately gave up on Courrier because their story and source selection leaned so heavily to the official left. If the choice is between a particular nation's version of The Guardian vs. The Telegraph, Courrier almost always goes with the former. Their special issues were particularly tendentious and one-sided. But since tastes vary, I'd recommend that people who read French give it a try.

Le Figaro, one of the leading French daily newspapers, publishes a weekly edition for a U.S. audience. It's well-written, and has good coverage of all the Francophone world, including African analysis that is hard to find in U.S. papers. As with The Economist and Courrier International, there's also plenty of European news that you won't find in the U.S. dailies. Le Figaro is right-wing by French standards, which places its approximately in the same zone as the New York Times. Le Monde, which is left-wing by French standards, also has a weekly; I've read occasional issues, but never subscribed, and, ideology aside, Le Figaro has bigger print and better layout.

Business and Finance: If you're a law student, or in the same general age group, the time to start learning about business and investing is now. Don't wait until you've saved $50,000 in a 401(k)  and have to figure out where to put it. The sooner you start reading and thinking about investing and business, the more you'll see fads and bubbles come and go, and the less likely you'll be to invest foolishly 25 years from now, or to allow yourself to be led around by a self-dealing financial advisor. Besides, whatever kind of lawyer you become (or whatever other career), you'll almost certainly be more useful to clients and yourself if you have some background knowledge of business–whether you're serving as a volunteer on the Board of a small non-profit, or urging your friend not to spend his life savings on program trading.

Forbes, Fortune, and Business Week remain the big three of the business magazines. Give each of them a try, and pick your favorite. I life Forbes, for excellent writing, and its pro-capitalist orientation. Barron's is worth a trial subscription. It's purely about investing, not about business in general. For a person just starting to think about the stock markets and other financial investments, Barron's is a good choice. You may not want the avalance of daily information that comes in the Wall Street Journal or Investor's Business Daily. Rather, in the learning stage, you may be better off with the weekly perspective. Especially useful are the big articles which provide the viewpoints of numerous experts on a major topic (e.g., how will the economy perform in the next 12 months?). As you'll find, experts, even well-qualified and sincere ones, are often wrong about economic predictions. One of the reasons to start reading the business/finance press early in life is to develop a healthy skepticism about following any single expert's advice.

Money is OK if you know absolutely nothing about money, and have to start at the very beginning.

New York City:  If you've ever lived there, it's fun to stay in touch. Of course the New York Times takes care of this for plenty of readers who used to live in The City, but there are other options. New York magazine is lively and interesting, and captures the NY feel in a way that the Times doesn't. It also sometimes has strong reporting on national politics. Also worth trying is the weekly New York Observer newspaper, which has great coverage of state and city politics. As with New York, the political slant is firmly to the left, but the factual reporting can sometimes be very good. The New Yorker remains, for eight decades running, the best cartoon magazine in the world. It has, unfortunately, also become a favorite vehicle for character assassination–sort of a highbrow version of ProgressNow. I'd trust its non-fiction articles only on topics which don't involve U.S. politics.

Legal newspapers: Especially if you can get a law student discount subscription, the National Law Journal (general national news), Legal Times (D.C. focus), and American Lawyer (corporate lawyers) are all worth trying. The same goes for any local/regional law paper in your area, such as New York Law Journal. Because of the Internet, none of these are probably as influential as they were 20 years ago, but they're still a good way to diversify your diet of legal news.

Daily newspaper: Coverage of legal issues in the mainstream daily press is typically horrible, with stories tending to concentrate only on who won or lost, while leaving the reader in the dark about the precise legal issue in dispute. But for general coverage of the state where you live, there is still nothing that comes remotely close to the daily newspaper. So if you live in the Denver area, you ought to be a daily reader the Denver Post; in Dallas,  the Dallas Morning News, and so on. Yes, those papers can be biased and selective, but they're still far superior to any other single source for state and local coverage.

On top of that, I'd recommend a high-quality national newspaper. In other words, the Wall Street Journal or the New York Times. The Times has a much larger "news hole," except for business news. But the Journal's new stories are much less likely to be DNC opinion essays misplaced in the news section. While both papers are well-written, the Journal is better-written. And the Journal's Friday/Saturday culture and leisure coverage has gotten quite good. For the Times, I'd recommend a partial weekly subscription (e.g., Monday to Friday), rather than the Sunday paper. You'll get a better variety of stories in the weekday editions, and the weekly special section on Science and Technology is sometimes excellent.  The Sunday Times does have the Book Review, which is now more important than ever, given the harsh cutbacks in book reviews at almost every other newspaper. But you can always subscribe to the Book Review separately, if it's important to you.

For a change of pace, London's Financial Times can sometimes be obtained with airline points. Like the Wall Street Journal, it's a business newspaper which covers lots of regular news, and some culture. And of course plenty of U.K. news. The editorial viewpoint might, roughly speaking, be considered somewhat similar to The Economist: supportive of free markets and globalization in general, but not at all afraid of big government activism.

Gun Week: Despite the title, published tri-monthly by the Second Amendment Foundation. Pre-Internet, the indispensible source of news on the firearms industry and the gun control issue. Even today, the best single source for people who follow the topic closely.

Bonus on-line reading: One of the big differences between the Wall Street Journal and the New York Times is reporting on the United Nations. The Journal has done excellent investigative reporting on the U.N. The Times has also done some good work, as in coverage of the "peacekeeping" fiasco in the Democratic Republic of the Congo. But Times coverage of U.N. HQ often consists of running p.r. interference on behalf of the U.N. For daily coverage of the U.N., by far the best source in the world is the indefatigable Matthew Lee, of the on-line Inner City Press. Lee's personal viewpoint is definitely from the Left, but he is relentless at digging into the corruption, lies, and human rights abuses perpetrated by an organization which too often escapes serious journalistic scrutiny, all the more so because of budget cuts in international coverage in most of the rest of the media. To his credit, the United Nations Development Programme temporarily convinced Google News to disappear Inner City Press.

p.s.: In response to some of the comments: Legal Times and National Law Journal merged last year; all the more reason for law students to give NLJ a chance, I guess. The above periodicals are only a small fraction of the periodicals to which I subscribe, and those to which I've subscribed in the past. Not included are categories including public affairs (e.g., Mother Jones, Natonal Review, Reason), Congress (National Journal etc.), hobby/lifestyle (Sky & Telescope), sports (Field & Stream), or scholarly journals. I'll write about some of those when mood strikes.

The Roberts Court and Business Revisited

(Jonathan H. Adler)

Tomorrow morning the Senate Judiciary Committee will hold a hearing on "Barriers to Justice and Accountability: How the Supreme Court's Recent Rulings Will Affect Corporate Behavior." According to Committee Chairman Patrick Leahy (D-VT), the hearing is the latest in a series examining "how the Court has misinterpreted laws meant to protect consumers and employees, shielded corporations engaged in misconduct, and overturned well-settled precedent." The hearing will examine three of the Supreme Court's most recent decisions, Wal-Mart v. Dukes, Janus Capital Group, Inc. v. First Derivative Traders, and AT&T Mobility v. Concepcion, and will feature Wal-Mart plaintiff Betty Dukes.

The hearing is intended to reinforce the claim that the Roberts Court is "pro-business" and focuses on three cases in which business interests prevailed against plaintiffs lawyers. In two, Wal-Mart and Janus Capital, the Court turned away efforts to expand plaintiff litigation against corporate defendants, and in the third, AT&T Mobility, the Court created a potential opening for corporations to defend themselves against consumer litigation with binding arbitration. These cases were important victories for the business community, as were some others, but they are hardly representative of the Court's business-related docket this past term, nor are they representative of the Court's overall performance in business-related cases.

While business interests prevailed in the cases of concern to Senator Leahy, in other cases businesses took it on the chin. Janus Capital continued to read the private right of action under Section 10b-5 quite narrowly, but Matrixx Initiatives v. Siracusano and Erica John Fund v. Halliburton Co. green-lighted securities class-action suits the business community had hoped to stop, and in Smith v. Bayer rejected a corporation's effort to preclude class actions in state court after prevailing against a class organized by different plaintiffs in federal court.  Thompson v. North Americna Stainless also expanded worker protection against retaliation for complaints of discrimination under Title VII in a way the business community feared.

In the preemption context, as we've seen in recent years, the Court did not establish a clear pattern.  Whereas the Court found federal legislation preempted state tort suits against makers of generic drugs and vaccines, it rejected preemption of suits against automakers for failing to install shoulder belts and, perhaps more significantly, turned away the business community's arguments against an Arizona immigration law.  This case was particularly important to the business community because the law authorizes the revocation of business licenses — in effect, capital punishment for a business — for the hiring of illegal immigrants, and is likely to be replicated in other states.

In American Electric Power v. Connecticut, the Court found that the Clean Air Act displaces suits alleging greenhouse gas emissions constitute a public nuisance under federal common law, yet the business community won on the narrowest grounds possible. The Court failed to preclude such suits on standing grounds and expressly left open the possibility of continued litigation under state law. The Court's displacement holding was clearly dictated by existing precedent and hardly makes up for the raft of regulation the business community faces as a consequence of Massachusetts v. EPA. For the business community, AEP was one step forward that came well after several steps back.

Analysts often look at the record of the U.S. Chamber of Commerce as a way to evaluate the Court's orientation toward the business community, but this is an imperfect measure. The Chamber often files amicus briefs in cases of high importance to the business community, but at times it stays its hand, either because its membership is divided or it has determined limited resources are better spent in other cases — perhaps because the likelihood of winning a given case is too remote. As a consequence, focusing solely on cases in which the Chamber participates may produce an incomplete picture, overlooking cases such as Kasten v. Saint-Gobain Performance Plastics Corp., a Fair Labor Standards Act case in which the business community had a clear interest, but in which the Chamber did not file a brief and the business community did not prevail.

As I hope this post illustrates, the rush to characterize the Court as "pro" or "anti" business based on a handful of cases or even a single term inevitably results in sweeping conclusions that obscure more than they illuminate. While the business community may win more often than not, many of the victories are quite small.  This year, with the exception of At&T Mobility v. Concepcion, most of the business community's victories came on narrow grounds and largely preserved the status quo. In this regard, the Court largely followed the general pattern of the past few terms. Similarly, the Court did not erect new barriers to plaintiffs' suits so much as it refused to open new doors. The Court didn't overturn precedent and move the law in a pro-business direction so much as it refused to move it in an anti-business direction, and so on. And where existing law or precedent did not lead the Court in a pro-business direction, it had no hesitation in reaching an anti-business result.

So is it fair to call the Roberts Court "pro-business"? Looking at the broader pattern of cases, there is little evidence that the Court, or any of the justices, are motivated by a desire to help business, as such. There have been too many Roberts Court decisions in which the business community lost big to support such a claim. But there are many justices on the Court who have doctrinal or jurisprudential commitments — such as a suspicion of policy-making through litigation — that often work to the business community's advantage. It's no coincidence that those justices least likely to open doors for plaintiffs' attorneys in suits against business are also those who reject programmatic litigation against government agencies. As this terms First Amendment cases show, it's not that the Court has a particular fondness for corporate speech, so much as it is a Court with a highly speech-protective majority. This results in wins for business when corporate speech is at issue, but it also works to the advantage of offensive protesters and non-corporate speakers. And where business can't marshal arguments that appeal to the justices judicial philosophies, they are less likely to prevail. So rather than say this is a Court that is "pro-business," I think it is a Court that business often likes — except when it doesn't.

LearnLiberty.Org

(Orin Kerr)

Learn Liberty is a collection of videos on various aspects of classical liberalism put together by the Institute for Humane Studies. If you're interested in libertarian ideas, there's a lot of good stuff to check out.

[Orin Kerr] Does the Fourth Amendment allow arrest warrants for civil offenses?

In a fascinating new decision by Judge William C. Pryor, the Eleventh Circuit Court of Appeals has ruled that