Jottings By An Employer's Lawyer

Thursday, July 14, 2005

The Business View of the Supreme Court -- Not Getting Its Fair Share of Attention?

As barrels of ink* are being written about the Supreme Court, most of it about the horse race aspect of who will get picked and why, BusinessWeek has an interesting perspective on how the business world will view the Rehnquist Court, which, regardless of when it actually happens, is clearly coming to an end. The point -- not enough attention paid at the high court to basic business problems -- the kind found in statutory interpretation cases, not grand constitutional principles. Speculating on why, the article poses it may be the lack of real world business law experience on the part of any members of the Court. Check out, The Hands-Off Rehnquist Court.

The article does note that business should be thankful for what it has received:
The Rehnquist Court has bestowed many valuable gifts on Big Business. Over the past 18 terms it has, among other things, placed strict limits on punitive damages, curtailed the ability of plaintiffs' lawyers to exploit questionable "junk" science, granted greater commercial free speech protection to marketing, and prevented the Americans with Disabilities Act (ADA) from becoming a financial nightmare.
And I would say that employers can't realistically complain about not getting enough attention, although the last two terms have not been overly exciting in the employment law world. Many of the decisions would have been dramatic only if they had been decided differently.

I would second the idea in the BusinessWeek that one of the most important, perhaps even surprising, areas has been the Court's interpretation of the Americans with Disabilities Act. While others, particularly advocates for the disability community, are highly critical of the Court's actions, my belief has always been that the Court felt compelled to apply a high threshold for the Act's applicability, because for once they truly did fear the proverbial "floodgates of litigation."** Rather than allowing the game players to take advantage of a most expansive definition, they reigned it in. The failure to do so would have been a financial disaster for business and a litigation quagmire. In the end, I don't think that would have been good for anyone, including the disabled community.

* A metaphor that may soon be obsolete as pixels not print become the dominant method of communication.

**According to Professor Michael Bazyler's recent article in the University of Richmond Law Review, "The phrase 'opening the floodgates of litigation' connotes a pejorative meaning in American legal argument. Most often, it is used by courts as a reason not to allow a certain case to proceed for fear that it would overburden both courts and society with a new class of lawsuits." Quoted in the California Cure for Japanase War Crimes.

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