Is the Roberts Court better for business than the Rehnquist Court? Overall yes, said Supreme Court litigator Maureen Mahoney, speaking at a media briefing on Tuesday. The briefing, hosted by the National Chamber Litigation Center, also featured Supreme Court litigator Beth Brinkmann.
In making the case for the Roberts Court, Mahoney, of Latham & Watkins, pointed to a greater percentage of business cases on the docket, the support of Roberts and Alito for constraints on punitive damages, a general narrowing of damage remedies, and the application of the Chicago school of law and economics to patent and antitrust cases.
A few other tidbits from the morning:
• Brinkmann, of Morrison & Foerster, noted that the Roberts Court seems more prone to ask the solicitor general's office to weigh in. This has happened 22 times this term, as opposed to about 13 times in the 2004 term.
• Mahoney suggested that the ruling in Bell Atlantic v. Twombly would have significance beyond antitrust law and could raise the pleading bar for civil complaints more broadly.
• While Massachusetts v. EPA could drive more burdensome environmental rules for business, said Brinkmann, there is a regulatory out. And the Bush administration may go this route by August.
• Legal Times' Tony Mauro asked whether this Court was finally the predictably conservative bench that the Bush administration had sought. Not necessarily, answered Brinkmann, noting that criminal cases were less predictable than the business cases. Mahoney added that many people really want to know about the Court's take on affirmative action and Roe v. Wade, but said the cases this term are unlikely to offer any real answer.
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