Miers and business

Gordon Smith notes big business’ support of Miers because of her experience representing big business clients, and therefore a possibly greater willingness to take business cases. Gordon observes:

As a consumer of the Supreme Court's opinions on securities matters, my general inclination is to be thankful that the Court doesn't take more business matters. The Justices and their clerks often seem quite out of their depth on business issues.

Amen (if I can still use such a word).  To be sure, it’s bad that we have to, for example, wait 20 years to get any clarification of fraud on the market, as we did between Basic and Dura.  And what we got from Dura was at least a curtailing of this misbegotten theory. However, as I discussed in my Fraud on a Noisy Market, Dura raises more questions than it answers.    Moreover, as I wrote yesterday, I’m dubious about what we’ll get on market issues from a Justice Miers. 

Nor does Miers' representation of big business particularly cheer me.  Big firms are not for free markets – they’re for a marketplace tilted in their direction, and particularly for more federal law, as long as the federal law is more favorable for them than dealing with state law. Federalizing one market after another (think Sarbox, which business largely supported when enacted) is bad in principle and usually leads to more problems than it solves. Given time and appropriate choice of law rules (see my From Efficiency to Politics in Contractual Choice of Law, 37 Georgia Law Review 363 (2003)), states can solve excessive litigation problems more effectively than a blunt one-size-fits-all federal statute.

My point is not at all that we should oppose Miers because she's represented big business, but simply that this is not a reason to support her, given the other problems with her nomination.

Comments

[KipEsquire]

Heard on the Sunday talk shows:

A Supreme Court justice has only one client: the Constitution.

[Fred]

This is a fine blog and i will definately bookmark it. I have a site that covers pretty much related stuff ( business leads ) - Business leads.

[Larry Ribstein]

Thanks!