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What Counts As "Business Law" Experience?

David Frum slammed Judge Sonia Sotomayor for lacking any meaningful business law experience. Bernard Harcourt cried foul. Paul Horwitz considers the evidence and renders a verdict (three actually).

An interesting sidenote: As one of Horwitz's commenters observes, Justice Thomas is the only member of the current court to have worked in-house for a corporation.

UPDATE: Frum defends himself from Harcourt here.

Oren:
<blockquote> An interesting sidenote: As one of Horwitz's commenters observes, Justice Thomas is the only member of the current court to have worked in-house for a corporation. </blockquote>

Just curious, is that experience notably different than working for a corporation while partner at a law firm?
5.31.2009 10:49pm
CJColucci:
Judges, by and large, come from the ranks of litigators, and should, because the business of courts is litigation. Some real old-timers may have had a substantial counseling practice as well, but you rarely see that among people of an age to be appointed to the bench now. If a person who litigates business cases is not someone with "meaningful business law experience" then virtually no one who becomes a judge these days has meaningful business law experience and criticizing specific candidates for this presumed and universal shortcoming is pointless.
5.31.2009 10:54pm
ArthurKirkland:
Working as a partner at a corporate law firm seems intensely more valuable and important (from the perspective of gaining experience counseling businesses) than a few years as a new lawyer in a large corporate legal department.

I wonder how many people would regard working for Monsanto with respect to "environmental" matters as a strong credential.

The level of debate concerning this nomination has been depressing. Frum did nothing to elevate it.
5.31.2009 11:13pm
Cornellian (mail):
If a person who litigates business cases is not someone with "meaningful business law experience" then virtually no one who becomes a judge these days has meaningful business law experience and criticizing specific candidates for this presumed and universal shortcoming is pointless.

According to Frum, Stevens is the only justice on the Court with significant business law experience (which Frum calls counseling corporations). Needless to say, that experience was a long, long time ago.
6.1.2009 1:22am
Steve:
Working as a commercial litigator actually gives you a lot of knowledge that you can use to counsel clients in non-litigation contexts. As a litigator, you see the things that can go wrong in a business deal, and you can advise your clients how to guard against them.
6.1.2009 4:28am
Public_Defender (mail):
So, John Robert's work representing business in court doesn't count as business law experience? What would someone have to do to get experience in criminal defense?
6.1.2009 7:32am
Anon1111:
I've been at a major firm doing corporate law, and in house doing the same. In-house is completely different than being in a firm, even working the exact same deal/issue (e.g.; proxy fight, M&A, private placement). In a firm, you generally deal with abstract legal concepts/arguments, while in-house, you generally deal with concrete business reasons. Having someone at the client explain the business reality to you is no substitute for actually working in the business day in, day out, and picking up the whole business context through osmosis.

Or putting it another way, a lawyer two years out of law school working in a legal department can make better, more informed, decisions on a whole lot of real world legal issues than a biglaw corporate partner. Of course, the opposite is true as well, for a different set of decisions. The jobs are just not comparable, and when I hire counsel, on either side of the divider, if they don't recognize that, I don't want to pay them.
6.1.2009 8:41am
BZ:
And, of course, the concept of knowing "business" as a government regulator (which is what a judge is) is different from either in-house or outside counsel. Breyer, for example, may be one of the most experienced at seeing the effect of legislation and regulation on business, from his time on the Judy Cmte. As opposed to Ginsburg, whose business expertise appears to be limited to what her husband teaches and to what sorts of regulation she would like to impose. What types of business disputes generally hit the SCotUS?

But that is not to say that I think Horwitz, the final of the three named commenters, is right either. His point is that you learn something as a judge by parsing business-related cases. I suppose that's true, but the question is what you learn? I suspect that you learn more about government as regulator than about how to run a business. What you learn, by design, is filtered by and through litigators and rules of evidence which channel what you hear.

I am reminded of the random discussion an accomplished think-tank expert in government contracting law and procedure had with a C.P.A. who held no power, but counseled government contractors. After listening to the expert complain about spending seven years trying to parse out a particular problem in the law, the C.P.A. leaned forward and said: "That's because of [a particular Dept of Defense Acquisition Regulation]." The expert blinked and said, "Oh." In other words, it doesn't matter how expert you are in one aspect of a problem; there may be another side which makes a difference.
6.1.2009 9:04am
Houston Lawyer:
There is a whole lot of legal counseling going on before a matter hits litigation. Litigation happens after something has gone wrong. What we don't have on the court is anyone with an appreciation of how much effort people have to put in to comply with existing law to try to avoid litigation. Someone who has had to advise clients on how to comply with a seven-part balancing test.
6.1.2009 9:14am
Bob White (mail):
Anon1111's comments ring quite true in my opinion, though my only in-house experience is conversing with clients' in-house counsel. I'd also suggest there's an important difference in outlook between a business litigator and a real corporate practitioner-in regular corporate practice, it's quite possible for both sides to walk away satisfied and happy. Indeed, that's the general goal. Litigation is much more of a zero-sum game, and the world is much better off in a world with positive-sum games than one where every game is zero-sum. Even more than actual corporate experience, that's the perspective that seems to be lacking in the judiciary.
6.1.2009 11:06am
BPM (mail):
Not to point out the obvious, but perhaps Frum makes this observation to provide an alternative form of the empathy standard for Supreme Court nominees. It appears that he would suggest that a lawyer's experience counseling business entities would make him/her more (or less) empathetic to businesses in certain cases. At the most it may be a counter-balance to other empathetic sentiments such as race or socio-economic considerations. As someone with little liking for the empathy standard in the first place as opposed to the attempt at 'blind justice', I find the argument hollow and counterproductive.
6.1.2009 6:00pm
SamW:
Well, it all depends on the type of "business litigation" practice one has. Many litigators spend a great deal of time "counseling" on business issues that have nothing to do with litigating a case.
6.1.2009 6:38pm

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