Yesterday Ilya blogged about Jeff Rosen's New York Times Magazine article on the Supreme Court and business, and also linked to Eric Posner's critique. Here, I wanted to note just one factual item, small by itself but illustrative of a broader problem:
[T]he progressive antagonists of big business are understandably feeling beleaguered and outgunned. "The fight before the court is generally not an even one," said David Vladeck, who once worked for the Public Citizen Litigation Group and now teaches law at Georgetown. "There's us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth." ...Now Rosen and Vladeck are generally careful scholars, but I'm pretty sure that Vladeck's quantitative analysis is not accurate. I searched for Public Citizen's business law cases in the Supreme Court since 2000, and came up with five (four if you omit the case against the Department of Transportation, though that strikes me as focused on a business-related matter). Here's the tally of the amicus briefs in each:
- Warner-Lambert v. Kent (forthcoming 2008)
On Public Citizen's side: 5 — AARP; National Conf. of State Legis. et al.; Public Justice, P.C.; American Ass'n for Justice; Kansas et al.;
On business side: 6 — Chamber of Commerce; Generic Pharmaceutical Ass'n; U.S.; Washington Legal Found.; Product Liability Advisory Council; Pharmaceutical Research & Mfrs. of Am.
- Riegel v. Medtronic (2008)
On Public Citizen's side: 6 — Sen. Kennedy & Rep. Waxman; AARP et al.; Consumers Union; Many States; Public Health Advocacy Inst. et al.; American Ass'n for Justice et al.
On the business's side: 6 — Chamber of Commerce; Advanced Medical Tech. Ass'n et al.; Product Liability Advisory Council; Washington Legal Foundation; Croplife America et al.; U.S.
- Safeco Ins. Co. v. Burr (2007)
On Public Citizen's side: 3 — Many States; Nat'l Consumer Law Center et al.; Many Insurance Commissioners.
On business side: 12 — Mortgage Ins. Cos. et al.; Farmers Ins. Co. et al.; Ford Motor Co.; U.S.; Nat'l Ass'n of Mutual Ins. Cos.; Property Casualty Ins. Ass'n; American Ins. Ass'n; Financial Servs. Roundtable et al.; Freedomworks Found.; Consumer Data Industry Ass'n; Washington Legal Found.; Trans Union.
- Koons Buick Pontiac GMC v. Nigh (2004)
On Public Citizen's side: 2 — Nat'l Ass'n of Consumer Advocates et al.; Commercial Law League.
On business side: 3 — American Bankers Ass'n; Michigan Bankers Ass'n; Virginia Automobile Dealers' Ass'n.
- Department of Transportation v. Public Citizen (2004)
On Public Citizen's side: 5 — American Public Health Ass'n et al.; South Cost Air Quality Management Dist.; Many States; Defenders of Wildlife et al.; Eagle Forum;
On Department's side, which is pro-business: 0.
So, unless I'm mistaken, one case — Safeco — fits Vladeck's description, and the remainder do not. Maybe I omitted some case, and maybe I should have omitted Department of Transportation. But unless the SCT-BRIEF database in Westlaw is wildly and systematically inaccurate, the numbers I found (even if they need to be amended in some measure) just don't bear out Vladeck's characterization.
Now Vladeck might have been recalling cases from over a decade ago, and assuming that the pattern continued as before (his assertion, recall, is about what the fight is, not what it was). Or he might have felt outnumbered because of the higher quality of the pro-business briefs (a matter I didn't investigate, but he may well be right about it) and therefore the difference might have lodged in his head as being one of quantity rather than just quality. Or he might have focused more on hostile briefs than friendly briefs at the time, and thus underestimated the number of friendly briefs in retrospect. Or perhaps he remembered right, and Rosen misunderstood some important qualifiers Vladeck mentioned, and thus quoted Vladeck out of context.
I'm sure both Rosen and Vladeck were sincerely trying to get this right. Nonetheless, unless I'm missing something big, the quote that Rosen gives — and that Rosen seems to be conveying as a true statement — is mistaken. (Rosen does start by saying this is what "the progressive antagonists of big business are understandably feeling," but in context it seems clear that he's reporting their statement of the facts as actual fact, and not just as their incorrect view.)
So the bottom line: Even experienced, thoughtful, scholarly sources can get the facts pretty badly wrong. When the facts are available to you (and here this is just a matter of a few Westlaw queries), it's better to check those facts yourself.
UPDATE: Some readers suggested that I misread Vladeck as speaking about Public Citizen lawsuits specifically, and that he was instead using "us" to mean "progressive antagonists of big business" and not "Public Citizen." This is quite possible, since he's no longer officially affiliated with Public Citizen. I read "us" to cover the group with which Vladeck had long been involved, and with which he presumably still maintains personal and emotional ties, but I might well have been mistaken.
Still, the Public Citizen cases I cited strike me as a reasonable stand-in for cases involving "progressive antagonists of big business"; and they suggest that such progressives do get lots of amicus briefs in their cases against big business, contrary to Vladeck's assertion. I also saw the same pattern when I went through 2007 and 2008 cases that seem to fit the progressive-vs.-big-business mold (setting aside employment law cases, which to my knowledge tend to involve a different sort of litigation dynamic; see, e.g., Fed Ex v. Holowecki (2008), 2 briefs for the employee and 2 for the employer):
- Watson v. Philip Morris (2007) had 4 for business and 5 on the consumer side (counting on business's side two briefs that were ostensibly for neither party, but that focused on a procedural issue in a way that I imagine would usually benefit business).
- Bell Atlantic v. Twombly (2007) had 8 for business and 2 for the consumers.
- Environmental Defense v. Duke Energy (2007) had 11 for business and 9 for the environmental group.
- Philip Morris v. Williams (2007) had 12 for business and 12 for the consumers.
So the bottom line, it seems to me, is that whether one focuses on Public Citizen's cases or includes other recent "progressive antagonists of big business" cases, one does not see the general pattern that Vladeck describes. A few cases do fit that mold, of course (Bell Atlantic and Safeco), but not the bulk of the cases I analyzed. If someone has more comprehensive data, please let me know — but so far Vladeck's assertion seems to be mistaken.
FURTHER UPDATE: California Punitive Damages (subtitled, "An Exemplary Blog," for a little bit of tort law humor) points to the now-pending Exxon Valdez punitive damages case, which generated 7 briefs for the business side and 16 briefs for the other side. (And, yes, I checked the numbers myself.)