What Businesses Need to Know About the Roberts Court
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If you’ve thought about filing a business lawsuit in federal court or you have one underway already, you’ll probably want to read about two still-in-process studies by Columbia University and Harvard University law school professors on how the U.S. Supreme Court under Chief Justice John Roberts (2005-present) has treated business lawsuits, and how that treatment has resulted in a more arduous, expensive process for businesses.
On April 4, draft papers on the topic by Columbia’s Scott Hemphill and Harvard’s John Coates were subjected to scrutiny at the Institute for Law and Economic Policy’s 20th annual conference. On the panel, Duke’s Jim Cox stood in for Coates, who had a conflict. Also on the panel were Robert Jackson Jr. of Columbia, law professor Barak Orbach of University of Arizona and Lawrence Norden of NYU’s Brennan Center. I rounded out the group.
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What We’ve Learned
In 1955, a British journalist wrote an essay on bureaucracy for The Economist magazine. The correspondent, Cyril Parkinson, put in the first sentence what we now know as Parkinson’s Law. It posits, roughly, that work expands to fill the time available to do it.
What held for bureaucrats in 1955 holds for lawsuits today.
In 2014, you rarely see a commercial case that gets to trial until the number of docket entries climbs above 400. You find motions to dismiss under Twombly and Iqbal, to compel arbitration under Stolt-Nielsen and Italian Colors, to enforce a forum-selection clause under Atlantic Marine Construction, for summary judgment under Celotex, to strike expert reports under Daubert, to decertify a class under Dukes and to review class certification under Rule 23(f).
The same impulse that prompts lawyers to use every available procedural device also persuades them to include a multitude of grounds. Thus a motion to dismiss asserts not only that the statute of limitations has run but also that laches, equitable estoppel and waiver bar the claim. A Daubert motion attacks not just the expert’s credentials, her methodology, the reliability of the data she used, the timeliness of her report and the possibility of gaps in her reasoning; it also recounts every time a judge has said something uncomplimentary about her work.
These efforts cost a bundle—for the clients. Not all of them have the same likelihood of success, but who will demand restraint? Using all of them wastes the time—and tests the patience—of judges, whose goodwill and trust you will need sooner than you think, but how often do lawyers cite that as a consideration when advising clients about strategy?
By increasing the size of the copious supply of defensive procedural weapons, the Roberts Court has created many new ways to expend resources—money, credibility, reputation. But lawyers should select the one, two or at most three devices whose skillful deployment will give their clients the best chance of winning. That requires restraint. We need a lot more of it.
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