The Supreme Court’s alleged pro-business stance and Kopf’s analytical skills test

I wrote a post some time ago entitled “Football is dead and so are civil jury trials in the federal courts.”  That prompted my extremely bright antagonist, Vince, to refer me to a New York Times article entitled “Corporations Find a Friend in the Supreme Court.”

In that article, the following was written:

Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.

The study was prepared by Lee Epstein, who teaches law and political science at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

I thought it might be fun if I actually read the law review piece rather than taking the paper’s summary at face value.   I was not entirely surprised to find that the Times cheery-picked the findings.

So, I decided to test my (few) gentle readers.  Figure 3, in yesterday’s post proposing a test of the analytical skills of the readers, comes from the Epstein, Landes and Posner law review article cited (rather breathlessly) by the NYT and relied upon by Vince.  (Let me hasten to say that this post is not a criticism of Vince.)

I will report some (but not all) of Epstein, Landes and Posner’s findings that were not reported in the Times piece.  I did my own “cherry-picking” to illustrate that care must be taken when generalizing about statistical data and the Supreme Court’s alleged pro-business stance.  For example:

 *The number of business cases the Supreme Court is taking has declined over time. “[T]he number of business cases in the Business Litigant Dataset averaged 36.6 per Term in the 1946 to 1952 Terms, compared to only 11 per Term since 2005; in the broader business dataset the decline is from an average of 46.1 to an average of 22.1.”  Lee Epstein, William M. Landes, & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minnesota Law Review 1431, 1436 (2013).

*Comparing the Warren Court to the Roberts Court, there is a definite trend toward business support but there are anomalies. Referring to figure 3 (my skills test figure), the authors write: “Both [methods, judicial votes or outcomes] indicate a large drop in support for business during the 1960s, the era of the Warren Court, and a large rise in the Roberts Court. [However,] [t]he plunge in the early 2000s is a puzzle.”  Id. at 1448.

*While Alito and Roberts ranked 1 and 2 as being the most “pro-business,” Justice Jackson ranked third.  This is a startling. “As FDR’s Attorney General, he prosecuted businesses vigorously, in sync with the New Deal’s general hostility to business interests.” Id. at 1451-1452.

*“Even more surprising is that Ginsburg jumps to 11 (above Scalia and just below Powell and Stewart) in [one data set].”  Id. at 1452.

*Justices Kagan was not included in the rankings just discussed because the authors believed that she had cast too few votes.  Justice Sotomayor was excluded from one data set that was used to compute the ranking just discussed because the authors believed she had cast too few votes.  Id. at 1451.

*“Over the span covered by our study, business litigants  have generally fared worse in the Supreme Court than their nonbusiness opponents, receiving only 40% of the Justices’ votes and winning only 38% of the cases.”  Id. at 1470.

*“We find that decisions in favor of a business litigant over a non-business litigant are not uniformly conservative or the opposite decisions uniformly liberal; only 67.5% of the decisions (and 67.4% of the Justices’ votes) fit the pattern of business wins-conservative and business loses-liberal. And in subsets consisting for example of business cases involving civil liberties (such as a suit against a business for libel), the percentage is substantially lower.” Id.

*There is a trend toward appointing “pro-business” Justices whether the President is a Republican or Democrat. “Over time, Justices appointed by Democratic Presidents—not only those appointed by Republican Presidents—have become more favorable to business, consistent with the general growth in the public’s favorable attitude toward business.”  Id. at 1471.

*The Court tends to follow the “Tenth Justice” in business cases. “We used regression analysis to isolate additional factors that are correlated with (and might influence) Justices’ votes in business cases.  . . . [T]he Solicitor General’s position in a business case is highly correlated with the Justices’ votes in the case . . . .”

What do I think?  Well, what I think is not important.  You read the law review article, and decide for yourself what figure 3 and all the rest really means.  Incidentally, I am constantly annoyed by these three authors and their consistent failure in this and other papers to more specifically describe their statistical methods in understandable ways.  But, that’s a quibble because you can puzzle it out if you try hard enough.

What I will say is that the commentators to my earlier post have far better analytical skills than the New York Times.  (“Duh,” you say!)  It is all well and good to use punchy headlines like “Corporations Find a Friend in the Supreme Court” as the NYT did in order to further your ideological perspective or to sell newspapers.  It is an entirely different thing to seriously examine the data in an intellectually honest fashion.  That is hard work and it frequently leaves you with more questions than answers.



19 responses

  1. Just have to agree to disagree on the impact of Court’s decisions (and the law review article). Maybe a better question is to name the decisions post Justice Alito which have favored the human being over the corporation?

  2. Vince,

    Can’t think of any.

    Incidentally, and as you probably know, Jerry Spence used to call corporations “non-breathers.” There is a certain elegant snark to that phrasing, although a credible argument could be made that Spence is the walking embodiment of the DSM definition of narcissism.

    All the best.


  3. Amgen Inc. v. Connecticut Retirement Plans and Trust Funds.

    I think Kirtsaeng v. John Wiley & Sons, Inc., also fits that description. Perhaps not in the sense you’re thinking, but it isn’t really fair to limit the scope just to weed out cases that don’t fit your point.

  4. Lawyers answered this question years ago. Most who represent human beings file in state court, most who represent corporations try to remove those cases to federal court. Both sets of lawyers are representing their clients interests based upon their understanding of the relevant law and pretrial procedure. It’s unfortunate since federal court is a great place to practice, it’s user friendly, from judges, clerks, staff, great technology and the courtrooms with daily audio emailed to the lawyers.

  5. Vince,

    You have been a great sport and I appreciate it. We should talk more about whether federal court is really that bad for lawyers committed to representing human beings or whether plaintiffs’ lawyers have developed a fear of federal court that is out of proportion. I truly don’t know the answer to that question, but a frank discussion about it would be fascinating. Perhaps we can do so at the NATA luncheon.

    Thanks again for playing my foil. All the best, and happy 4th.


  6. Ryan,

    The Amgen case is interesting because it represents a coding problem that Pat Borchers and others have mentioned. In Amgen,the Court held that proof of materiality is not a prerequisite to certification of a securities-fraud class action seeking money damages for alleged violations of § 10(b) and Rule 10b-5.

    Amgen was sued by a state pension fund–effectively the Treasurer of Conn. The Fund won. When a state entity performing a business function (managing investments for other people) wins, how can that win be classified as anti-business rather than pro-business? To make that point even more clear, let’s substitute a name, and instead assume Amgen was sued by Vanguard, a private fund manager? Did business really lose if the vaunted Vanguard prevailed?

    But, I get your broader point. Justice Alito joined in the decision, and the decision made it easier to bring securities fraud class action cases using a fraud on the market theory. Can Alito really be that in the tank for business if he goes along with such an opinion?

    All the best.


  7. ” a fear of federal court that is out of proportion” I doubt it. 😄81% of Twombal motions to dismiss in employment discrimination cases in federal court over a several year period were dismissed in whole in part. Iqbal is now the 4th most cited case in federal court history and Twombly is 7th or vice versa, I don’t recall which was decided first. They are cited more often tha Marbury, Miranda, ant the summary judgment trilogy cases. Unfounded or exaggerated fears ….doubtful. Just look at the Eighth Circuit stats affirming the grant of summary judgements in employment and civil rights cases. Three is no area of the law where district judges are right so often — at least according to our Circuit. The surprising thing to me is that even though the numbers have dropped precipitously they file any of these cases at all in federal court.

    All typos and mis-spellings are the fault of my iPad 😃

  8. Dear Brother Bennett,

    I just knew that you would be celebrating the defeat of the King’s men (my guys) on the Fourth of July by citing a bunch of stuff that makes my head explode.

    As for Twombly, Epstein, Landes and Posner, in their groundbreaking book, found empirically that “there can be no confidence that Towmbly caused an increase in the dismissal rate.” Lee Epstein, William M. Landes, Richard A. Posner, The Behavior of Federal Judges,p. 228 (Harvard University, 2013). I also wonder whether the statistics you cite involve pro se cases. Moreover, I believe that most trial judges, whether appointed by a Republican President or a Democratic President, pitch cases under Twombly because they truly believe the case would never get to the jury–that is, in employment cases, Conley v. Gibson made absolutely no sense and most trial judges thought that Conley v. Gibson made no sense before Twombly. Epstein, Landes and Posner posit that idea as well. I have more, but that is enough for now.

    By the way, last week, I was interviewed by a bright young lawyer who left a good trial practice to get a PhD in political science in St. Louis. Her doctoral dissertation will be on Twombly and Iqbal. Should be very interesting as she is compiling a data set that is more expansive than the one used by Epstein, et al.

    All the best, and God save the Queen.


  9. Right. Instead of looking at the facts of the given case, I’m looking at its implications. The typical pro-business decision is pro-business because it makes the corporation harder to sue. Thus, a decision that removes (or avoids the imposition of) obstacles to bringing a suit against a corporation seems to answer Vince’s question perfectly.

  10. Touché , I am sending by taxi a case of aspirin for that headache. 😃😃😃 Posner is one of the major offenders of affirming SJ with obvious fact questions because he is so sure he knows what a reasonable juror would do. That’s as laughable as he is indisputably brilliant. But I doubt he has any real world basis to know what a jury would do other than a formula. As my daughter said after he gave her college commencement address- ” where did they get that guy.” His speech left me wondering the same thing.

  11. So if Twombly has not increased the dismissal rate then judges are not following it. Brother Kopf I doubt that. I might be the exception. I have only granted two Twombly motions, one in a consolidated 16 case anti- trust action which proceeded to settle for many millions because the plaintiff could so obviously cure the pleading problem. Usually, the only thing I find implausible is wasting a client’s funds to file the motion. Best

  12. Ryan,

    But Amgen can be spun the other way. The “Alito is a whore for business interests” crowd would posit that it’s not really a case of a human being taking on a corporation ’cause its two big entities fighting it out.

    All the best.


  13. Mark,

    Great story about your daughter and Posner. The few times I have heard him speak, I have said the same thing as your daughter. Give her a hug from me!

    All the best.


  14. Mark,

    I think Posner et al are suggesting that Twombly did not change much ’cause judges were doing essentially the same thing before Twombly. That is true, one might argue, because over time federal judges learned not to take Conley v. Gibson seriously for a certain subset of cases. In this regard, Twombly has become a staple for pro se dismissals where, after leave to amend, was granted, the poor schmuck either failed to respond or wrote more incoherent babble. Tiz a puzzle though!

    But let’s not forget my earlier point to Vince which resulted in your earlier comment. I wonder whether plaintiffs’ lawyers are avoiding federal court (assuming that is empirically the case) because of (1) mythology about the feds being “pro-business” or (2) the fact that the feds are “pro-business” such that a rational lawyer picks the state venue to avoid the “pro-business bias” even though he or she would otherwise prefer to be in federal court.

    Moreover, if there is an impact of the mythology that I just wrote about, perhaps plaintiffs’ lawyers also like the state courts because that is where they have learned their trade and that is where they feel most comfortable. On top of that, it is certainly true that we feds are more formal, more “paper” intensive, and more prone to set all sorts of deadlines for this and that. In short, I suspect that plaintiffs’ lawyers prefer the state courts in part because they have to work less at stuff they regard as irrelevant. Given the reality and pressures of a contingency fee arrangement, a rational lawyer should typically be expected take the path of least resistance.

    Of course, forum selection may be a mix of motivations. But, I do want to explore with Vince and his fellow plaintiffs’ lawyers this question of mythology vs reality.

    All the best.


  15. Great points, RGK, I also think most state court judges are less SJ friendly than the fed counter parts with tons more resources to grant them.

  16. Mark,

    I entirely agree. As you may remember my old law partner is a state court trial judge. While I don’t know what he does on SJ motions, I do know (or believe) that (1) he is alone–without law clerks; (2) he has to depend heavily on the briefs from the lawyers; (3) he is under unrelenting time pressures; and (4) at least in Nebraska, the Nebraska Court of Appeals and the Nebraska Supreme Court is not terribly friendly to SJ motions as a general matter, thinking that trials are “safer”–that is, those judges tend to model the wide open milieu of yesteryear in the state trial court in which they earned their spurs. Thus, it is probably not surprising that state trial judges are risk averse when it comes to SJ motions. All the best.


  17. Mark,

    Regarding my earlier comment in reply to yours, I just remembered something about risk averse state trial judges. Our firm once waited five years for a ruling on a SJ motion. After 60 months had passed, we received a one-liner from a state trial judge that said something like: “The motion is denied because there are facts in dispute.” At the time, we weren’t laughing, but in retrospect it was pretty funny.

    All the best.


  18. Vince,

    I get your point about the hard won fight prior to the Founding for the right to be judged in courts that were not in the tank for the King. The jury trial right is surely an important safeguard for that concern.

    What I don’t get is why employees should fear arbitration. Unless you honestly believe that arbitration is fundamentally biased in favor of employers, and you can prove that bias with data, I think a rational employee, knowing all the facts, might well think that arbitration provides a quicker, cheaper and more effective way getting justice in the employment setting.

    More specifically, I have come to think that many employment cases are not about the employment relationship at all, but rather about grievances that are based upon the erroneous assumption that employees are entitled to more than what their contract provides. E.g., “Despite the fact that I was an employee at will, I was fired for no good reason and the jury should give me money because I was not treated fairly.”

    Long ago, I was a working man and a union member (UAW for one stint and Brotherhood of Railway Express Clerks for the others) and my brother is now and always has been a union man (UTU). In fact, he was the local chairman and a griever for his union. I don’t begrudge employees the right to sue their employers. I do begrudge employees the right to sue for something more than their contract provides.

    I realize, incidentally, that I am now discussing your concerns at a very high level of abstraction and thus sweep under the rug many real world problems. But, if the right to a jury trial was fought for during the Revolution, so was the right to contract. Thus, an employee who laments having signed an arbitration agreement giving up a right to trial by jury in exchange for arbitration has little justification under our Constitution for complaining about being compelled to do that which he or she agreed to do.

    Now, if Congress or the state legislatures want to enact regulatory provisions that alter, within the bounds of the Constitution, the relationship between employees and employers (like the Labor Relations Act), I have no problem with such alterations. But a number of the cases I see now use these regulatory provisions (“retaliation” claims for example) as a cover for the employee’s real claim–I am entitled to something more than my contract provided.

    All the best.


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