Corporate Success and the Federal Courts

I’m not going to do any math on this one, and just sort of rely on articles of read on this topic over the last decade or so. I’m not opposed to backing this up with stats if I must, but I feel lazy today. :-)

Yesterday and today, in the public hearings for the soon-to-be Justice Kavanaugh (who is too good for us, btw, considering how patient he’s been with the shitshow around him) he was constantly accused, as Democrats always do, of being “too friendly to Big Business.” Lists of cases were provided, which (ostensibly) proved that Judge Kavanaugh is biased toward Big Business. And, of course, when Judge Kavanaugh attempted to provide cases he’s ruled on where Big Business did *not* win, he was quickly silenced by the questioner.

To the unaided observer, this sounds ominous, a Justice with the majority of their opinions falling on the side of Big Business. Which begs the question: Is it? (Ominous, that is.)

Chief Justice Roberts, in his nomination hearings, was asked the same question by then-member Chuck Shumer. Sen. Shumer rattled off a list of decisions rendered for the “Big Guy” (as Sen. Shumer put it) whereupon Sen Shumer asked the question, “Judge, does the little guy have a chance in your court?”

Justice Roberts answered succinctly, “Yes, if the little guy has the law on his side. But if the big guy has the law on HIS side, he’s going to win.”

So, with that in mind, let’s think about the prior question. It is ominous, or even odd, to have Big Business win more often than not in Court? The answer is, of course, no; and it’s especially not ominous if you think though the process:

  1. It is not true that the Supreme Court has the best legal minds in the country. In every graduating class from a top law school, SOME of the best legal minds go into public service, of course; it is from these that our Courts, and our Supreme Court, is picked. But SOME of those “best legal minds” take jobs at top law firms, where they DEFEND Big Business in Court; and some of those “best legal minds” go to work FOR large corporations. So, it is important to point out that the lawyers working to defend those large corporations in court are every bit as good as the judges on the Federal Courts and the SCOTUS, and *possibly* are better versed in business law than are those federal judges are, since the government judges must deal with all aspects of law, while the corporate attorneys are immersed in business law on a daily basis.
  2. The worst outcome for a large corporation is to lose a large case in court. When they lose, they can be subject to large fines (which hits their stock price) and a possible loss of good will in the eyes of the public. So, they do whatever they can to stay *out* of court.
  3. So, when a large corporation is sued, they obviously ask their lawyers for an assessment of the case. At the risk of making this appear overly simple, their very good lawyers are going to tell the corporation executives if (a) the law is on their side, and they are confident than they will win in court, (b) the law is NOT on their side, and they are not confident they will win, or (c ) could go either way.
  4. If their lawyers tell them (b) or (c ), and in some cases (a), the corporation is going to direct their lawyers to settle out of court; this means that the corporation is only going to go to court if they are extremely confident in winning, or they can’t convince the plaintiff to settle.

By now, you should see where this is going. If the only time corporations go to court is when they are extremely confident the law is on their side, then *obviously* they are going to win most of the time, whether the judge is conesrvative, liberal, inbetween….whatever.

Further, IIRC, the outcomes of corporate cases at the SCOTUS and the lower courts bear this out. At the SCOTUS, it is the social-issue cases which we continually see decided by 5–4 margins; in the corporate cases, the corporations usually win, and the margins tend not to be 5–4; they tend to be 7–2, 8–1, and many of them are 9–0, for the above reasons.

So, it is not really unusual to see corporations win most of their cases in court. And the critics from the left side of the aisle, in these hearings, know that; they’re posturing when they ask these sorts of questions.

Written by

Data Driven Econophile. Muslim, USA born. Been “woke” 2x: 1st, when I realized the world isn’t fair; 2nd, when I realized the “woke” people are full of shit.

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