The Wall Street Journal
Are Federal Courts Biased in Favor of Big Business?
By Nathan Koppel
February 8, 2011

A panel discussion today at the New York University School of Law explored the touchy subject of whether business interests hold too much sway over federal judges.

Moderated by NYU’s Arthur Miller, a/k/a Mr. Federal Court, the discussion was a veritable who’s who of high-wattage thinkers from the worlds of academia (George Washington’s Jeffrey Rosen), public policy (Monica Youn of the Brennan Center for Justice) private practice (Latham & Watkins’s Maureen Mahoney and trial lawyer Stephen Susman), along with many, many more.

The Supreme Court, for starters, came under fire from some panelists, who cited the Chamber of Commerce’s win rate during Chief Justice Roberts’s tenure.  Doug Kendall, head of the Constitutional Accountability Center, cited statistics his group compiled late last year showing that the Chamber had won 68% of the cases in which it participated from 2006-2010, compared to the Chamber’s win rates of 56% in the Rehnquist Court and 43% in the Burger court. (Here’s a link to that report.)

Stuart Gerson, a defense attorney with Epstein Becker & Green, questioned the study, suggesting that the Roberts Court is not pro-business, or pro Chamber per se, but rather believes merely that plaintiffs should be held to an appropriately high standard to prevail in litigation, as evidenced by the court’s Iqbal and Twombly rulings, which raised pleading standards in cases.

Gerson said that a better way to understand the Roberts Court — including some of the court’s liberal bloc — is that it’s reluctant to interpret federal regulations expansively in order to facilitate plaintiffs’ recoveries.

That point, in turn, touched off a discussion about whether federal judges at all levels are hostile to jury verdicts and are inappropriately shutting off consumers’ access to courts.

Allison Zieve, the director of the Public Citizen Litigation Group, said that recent Supreme rulings, including those favoring arbitration, suggest a wariness towards consumers and a view that they should not “clog the court with litigation.”

Cyrus Mehri, a D.C. lawyer who represents employees in litigation, cited a study concluding that 40% of federal verdicts favoring employees are reversed on appeal, while only 8% of pro-employer verdicts are reversed. “There’s a double standard,” he said.

But Jonathan Lerner of Skadden Arps was skeptical of the view that the sky is falling on plaintiffs. America, he suggested, still is the land of litigation plenty, where plaintiffs can force companies to spend heavily to defend cases that are brought on a “wing and prayer.” Studies have shown, he said, that juries tend to be anti-business. On appeal, business defendants may have a healthy win rate, but the real question, he said, is: “Are they winning cases they ought not to win?”