Economic Regulation at the Court

>> Monday, October 05, 2009

Adam Liptak notes that this term's docket has a large number of cases about economic regulation:

By the time the justices left for their summer break in June, a majority of the cases they had agreed to hear — 24 of 45 — concerned business issues, according to a tally by the National Chamber Litigation Center of the United States Chamber of Commerce. The corresponding numbers last year were 16 of 42.

The nature of the cases has changed, too. In recent terms, the business docket was studded with cases about employment discrimination, federal pre-emption of injury suits and the environment. With the exception of a single employment case, all of those categories are missing.

In their stead, important questions about bankruptcy, corporate compensation, patents, antitrust and government oversight of the financial system will confront the justices.

Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 08-861, for instance, concerns an issue that has engaged the court since the New Deal: at what point does the lack of presidential control over independent agencies violate separation-of-powers principles?


In Jones v. Harris Associates, No. 08-586, the Supreme Court will decide what role the courts should play in regulating the compensation paid to investment advisers for mutual funds. In affirming dismissal of the case, a unanimous three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, said the issue was a variation on the much-discussed question of whether the markets could be trusted to set executive compensation.
There are other examples. While these cases tend to attract a lot less attention than "social issue" cases, they're very important, especially in this political and economic context. I agree that this increases the potential for confrontations between the Court and the political branches. They'll also give us a good idea about whether Sotomayor is less pro-business than the other more liberal members of the current Court.


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