Eugene Volokh's Blog, page 2768
June 29, 2011
Today's Sixth Circuit Decision Upholding the Individual Mandate
Today's 2–1 Sixth Circuit Court of Appeals decision upholding the constitutionality of the individual mandate is undeniably a setback for mandate opponents. Up until now, judges' votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold it. Even in the Sixth Circuit, two of the three judges fit the same pattern (Judge Boyce Martin, and Judge Graham in dissent). But Judge Jeffrey Sutton, a well-known conservative judge has now become the first exception to it. Like Martin, he voted to uphold the mandate as an exercise of Congress' powers under the Commerce Clause.
At the same time, Martin and Sutton's opinions highlight a central weakness of the pro-mandate position. Unlike previous decisions upholding the mandate, which argued that failing to purchase health insurance is "economic activity," they conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of "substantial" economic effect. The Martin-Sutton approach thereby opens the floodgates to an unlimited congressional power to impose mandates of any kind. Any failure to purchase a product has some substantial economic effect, at least when aggregated with similar failures by other people. This is certainly true of failures to purchase broccoli, failures to purchase cars, failure to by a movie ticket, and so on. Even failure to engage in noneconomic activity has such effects. For example, a mandate requiring people to eat healthy food and exercise every day can be justified on the grounds that it would increase economic productivity and also increase the demand for healthy food products and gym memberships.
Obviously, Congress will not enact every conceivable harmful mandate that the Martin-Sutton analysis would authorize. But the risk of abuse is far from purely theoretical, since many interest groups can and will lobby for laws that compel people to purchase their products.
The sweeping congressional power authorized by Martin and Sutton's opinions makes hash of the text of the Constitution, which gives Congress the power to regulate interstate and foreign commerce, not a blanket power to mandate anything that has a "substantial" economic effect. It also makes most of the rest of Congress' Article I powers superfluous. For example, there would be no need for a separate power to tax. After all, failure to give the government some of your money voluntarily surely has substantial economic effects. Therefore, virtually any tax could be imposed through the Commerce Clause.
The Sixth Circuit would be defensible if it were compelled by Supreme Court precedent. However, both Martin and Sutton admit that the Supreme Court has never previously ruled on a case involving a mandate of this type, and has also never previously addressed the issue of whether the Commerce Clause authorizes regulation of inactivity. Therefore, it's hard to defend their reasoning on the grounds that it was compelled by precedent.
Martin and Sutton also both rely on the argument that a health insurance mandate is special case because everyone will use health care at some point in their lives. This part of their reasoning adds little to previous statements of the same argument, which I criticized here.
Much of Judge Sutton's Commerce Clause argument relies heavily on the notion that the plaintiffs' case must fail as a "facial" challenge to the mandate because some possible applications of it are constitutional even under his interpretation of the plaintiff's own theory of the case. He leaves the door open to "as-applied" challenges, suggesting that the mandate may still be unconstitutional as applied to people who have not previously purchased health insurance. I may take up this aspect of Sutton's argument in a follow-up post.
Finally, it's worth noting that Sutton and Judge Graham both reject the government's claim that the mandate is a valid exercise of Congress' power to tax, instead concluding that it is a penalty. Judge Martin avoids addressing this issue directly, but does hold that the mandate is a penalty in the section of his opinion discussing standing. So far, the tax argument has been rejected by every judge who has ruled on it, including those who have upheld the law on other grounds.
Judge Sutton on the Individual Mandate
Of all the judges tasked with assessing the constitutionality of the individual mandate, the one to watch so far has been Judge Jeffrey Sutton of the Sixth Circuit. As some readers know, Judge Sutton is a Federalist Society favorite, one of Justice Scalia's favorite former clerks, and a regular "feeder" judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate. In light of that, I think the important aspect of today's opinion from the Sixth Circuit is that Judge Sutton concluded that the mandate is constitutional.
I think Judge Sutton's separate opinion is excellent, but then it's easy for me to say: Judge Sutton's views closely match what I've been saying here and elsewhere for a long time, so maybe this just proves once again that brilliant people agree with me. In any event, in light of our many debates here on whether the proposed action/inaction distinction is clear and obvious (as Randy argues), or is actually quite complex and uncertain (as I have contended), I thought it would be worth posting Judge Sutton's discussion of why he finds it quite confusing:
Level of generality is destiny in interpretive disputes, and it remains unclear at what level plaintiffs mean to pitch their action/inaction line of constitutional authority or indeed whether a workable level exists. Does this test apply to individuals who have purchased medical insurance before? Those individuals have not been inactive in any sense of the word when it comes to the medical-insurance market, yet plaintiffs say that Congress may not regulate them.
What of individuals who voluntarily have insurance on the day the mandate goes into effect? One of the plaintiffs in this case, Jann DeMars, now has insurance, yet she claims Congress has no right to require her to maintain that coverage. It is not clear what the action/inaction line means in a setting in which an individual voluntarily (and actively) obtains coverage and is required only to maintain it thereafter. As to this group of individuals, why can't Congress regulate them, even under plaintiffs' theory of the case? We no longer are talking about a mandate imposed on the mere status of "existence" in the United States but on individuals who have voluntarily purchased medical insurance in an interstate market and who must maintain only what they chose to buy. At a minimum, this application of the law is constitutional.
How would the action/inaction line have applied to Roscoe Filburn? Might he have responded to the Agricultural Adjustment Act of 1938 by claiming that the prohibition on planting more than 11.1 acres of wheat on his farm compelled him to action—to buy wheat in the interstate market so that he could feed all of his animals? And is it any more offensive to individual autonomy to prevent a farmer from being selfsufficient when it comes to supplying feed to his animals than an individual when it comes to paying for health care? It seems doubtful that the Wickard Court would have thought so. See Wickard, 317 U.S. at 129 (acknowledging that the law "forc[ed] some farmers into the market to buy wheat they could provide for themselves"). How would the action/inaction line apply if someone like Angel Raich sold her house, marijuana plants and all? The Controlled Substances Act would obligate the new owner to act (by removing the plants), see 21 U.S.C. § 844, but it seems doubtful that he could sidestep this obligation on the ground that the law forced him to act rather than leaving him alone to enjoy the fruits of inaction.
There is another linguistic problem with the action/inaction line. The power to regulate includes the power to prescribe and proscribe. See Lottery Case, 188 U.S. 321, No. 10–2388 Thomas More Law Center, et al. v. Obama, et al. Page 45 359–60 (1903). Legislative prescriptions set forth rules of conduct, some of which
require action. See, e.g., 18 U.S.C. § 2250 (sex-offender registration); id. § 228 (childsupport payments); see also United States v. Faasse, 265 F.3d 475, 486–87 (6th Cir. 2001) (en banc). The same is true for legislative proscriptions. Take the drug laws at issue in Raich, where Congress regulated by prohibiting individuals from possessing certain drugs. A drug-possession law amounts to forced inaction in some settings (those who do not have drugs must not get them), and forced action in other settings (those who
have drugs must get rid of them).An enforceable line is even more difficult to discern when it comes to health insurance and the point of buying it: financial risk. Risk is not having money when you need it. And the mandate is one way of ensuring that all Americans have money to pay for health care when they inevitably need it. In this context, the notion that self-insuring amounts to inaction and buying insurance amounts to action is not self-evident. If done responsibly, the former requires more action (affirmatively saving money on a regular basis and managing the assets over time) than the latter (writing a check once or twice a year or never writing one at all if the employer withholds the premiums). What is more, inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk. When Warren Buffett tells shareholders that "[w]e continue to make more money when snoring than when active" or that "[i]nactivity strikes us as intelligent behavior," Chairman's Letter to Shareholders (Feb. 28, 1997), ¶¶ 72–73, available at http://www.berkshirehathaway.com/lett..., he is not urging the Board of Directors to place him in a Rip Van Winkle-like stupor for the next year. He is saying that, of the many buy and sell recommendations that came across his desk that year, the best thing he could have done is the informed, even masterful, inaction of saying no to all of them.
No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce. In affidavits filed in this case, the individual plaintiffs all mention the need
to make current changes in their spending and saving practices to account for the need to pay for medical insurance in the future. Saving to buy insurance or to self-insure, as these affidavits attest, involves action. E.g., Ceci May 27, 2011 Decl., ¶ 7 ("Due to the added financial pressure [of the mandate], I have cut back on discretionary spending, such as costs associated with entertainment, like going to the movies, a restaurant, or sporting events."); Hyder May 28, 2011 Decl., ¶ 8 (same).
Debate on Libertarianism and Foreign Policy
On July 13 at 7 PM, I will be debating George Mason University economist and prominent blogger Bryan Caplan on libertarianism and foreign policy. The debate will take place at George Mason Law School, 3301 Fairfax Dr., Arlington, VA, in Room 221.
Bryan summarized his case for "pacifism" (by which me means opposition to all warfare, but not all violence of any kind) in this post. I outlined my own far less dovish view here.
Bryan and I agree on the vast majority of other issues — not only in terms of bottom-line policy preferences, but in the way we get to those conclusions. Bryan's book The Myth of the Rational Voter even made my list of fifteen books that influenced me the most. So it's both interesting and thought-provoking that we disagree so much about this question, one that tends to divide libertarians among themselves, just as it also often divides liberals and conservatives. It should be a fun debate, and hopefully an enlightening one.
Divided Sixth Circuit Panel Upholds Individual Mandate
A divided panel of the U.S. Court of Appeals for the Sixth Circuit, in an opinion by Judge Martin, has upheld the individual mandate against a Commerce Clause challenge. The same panel, in an opinion by Judge Sutton, rejected the argument that the mandate can be sustained as an exercise of the federal government's taxing power (which means, to date, no court has accepted the taxing power argument). Senior District Judge Graham, sitting by designation, dissented from the court's Commerce Clause holding. The opinion is here.
Cheap Beach Reading and an Interesting Pricing Model
Ebooks are not exactly new, but University of Chicago Press seems to be experimenting with an interesting pricing model for some of its ebooks, including mine. You can buy the ebook for $45, the same as the retail price of the book, or you can buy a 30-day license of the ebook for only seven dollars ($7.00). If you're the kind of person who would otherwise buy the book, read it, and then resell it on Amazon at a loss of 5 to 10 dollars, you can skip the hassle and just buy the 30-day license. Better yet, if you're the kind of person who would buy the book, read it immediately, and put it on a shelf never to be looked at again, you can save $25 or so relative to the discounted Amazon price by just getting the ebook license. And of course, it's easier to take an e-reader to the beach with you over July 4th weekend than to take a stack of books.
By contrast, Amazon's Kindle edition costs over $30. I'll be interested to see how this works, and whether it catches on.
Which Justices Vote Together?
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
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
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.
June 28, 2011
The Roberts Court and Business Revisited
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
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.
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