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David Arkush

David Arkush

Posted: November 19, 2010 01:02 PM

New York Times' Adam Liptak recently wrote about a problem with Roberts Court opinions: They're very long, but they fail to give clear guidance on what the law is. The article focuses on causes like compromises between the justices and ghostwriting by clerks.

But there may be other ways in which this court's opinions are undermining clarity in the law. The court has been notably activist, overturning precedent that has been on the books for decades (or even a century) in areas ranging from campaign finance to antitrust. When the Supreme Court is so willing to overturn precedent, what is the law? Framed differently, how does one even craft arguments to this court? Citing the law won't cut it because the court might just ignore or overturn it. So one must look to the justices' individual politics and values. That has always been the case to some extent. But when the court is so willing to remake the law in a broad range of areas, individual political appeals become much more important. A devastating piece of evidence on this point came from AT&T's brief in AT&T Mobility v. Concepcion -- the pending case that could wipe away nearly all class actions. AT&T's lawyers made this argument:

Accordingly, California's professed belief that class actions are necessary for deterrence boils down to the proposition that deterrence is served by imposing on all businesses -- without regard to culpability -- the massive costs of discovery that typically precede a class certification motion and the inevitable multimillion dollar fee award extracted by the class action attorneys as the price of peace. In other words, because class actions always cost vast amounts to defend and eventually settle with a large transfer of wealth from the defendant to the class action lawyers no matter how guiltless the defendant may be, all businesses will be deterred from engaging in misconduct by the very existence of this externality producing procedure.
Note that this is a pure policy argument, not a legal argument. More important, it's politically charged hyperbole. Class actions "inevitabl[y]" end with "multimillion dollar fee awards" -- and "without regard to culpability!" AT&T has fought off many class actions, as have its lawyers. Hyperbole is a rather generous characterization of its argument here.


And look at some of the other language: Class action attorneys "extract" millions from defendants. Class actions "always cost vast amounts to defend" (another flat untruth that could be disproved by looking through AT&T's or its lawyers' files), and they eventually end with a "large transfer of wealth" to the class action lawyers "no matter how guiltless the defendant may be."

AT&T's lawyers are not hacks. They are some of the nation's best Supreme Court litigators. It is a devastating indictment of the Roberts court that these lawyers think repeating myths about greedy trial lawyers is an effective way to argue. They must think the court is brazenly activist and political.

 

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