Business, Free Speech Winners In High Court Term
A lesser-known ruling involving a cell phone contract has the potential to all but obliterate the right to sue corporations. The decision upheld fine-print clauses that bind consumers to arbitration even when state law forbids such clauses.
Lawyers who represent large companies said the decision could spur more mandatory arbitration clauses in all sorts of contracts; not just retail contracts, but employment contracts, too. Lawyer Peter Keisler said he would expect many large corporations to require new hires to sign contracts promising not to sue as a condition of employment.
"It's almost malpractice for a lawyer of a company now not to put an arbitration clause in any kind of document, whether it's a consumer contract or an employment agreement," said Supreme Court advocate Tom Goldstein. "All of those agreements will be enforced and the company [will] no longer face the prospect [of class-action liability], if they write the agreement correctly."
In another big-business win, the court's five conservatives ruled that generic drug-makers, which account for 75 percent of the nation's prescriptions, cannot be sued for failing to warn consumers of dangerous side-effects, as long as their labels track their brand-name counterparts.
Not all of the big-business victories this term came in 5-to-4 votes. By a unanimous vote, the court threw out an anti-pollution lawsuit brought by state and local governments against the five largest electrical power companies — companies that combine to produce approximately 10 percent of the carbon emissions in the United States. The court said the states had no right to sue.
Looking at the term overall, observers without exception, see a conservative arc that is hostile to litigation, especially litigation that seeks to regulate business practices by holding companies accountable in court for their actions.
The business community won "the triple crown" of cases, said Robin Conrad, executive director of the U.S. Chamber of Commerce Litigation Center. "Not all cases are created equal," she said, and the chamber won all of the most important ones in which it was involved this term.
The only major case that the chamber lost involved a challenge to Arizona's strict state law imposing harsh penalties on businesses that hire illegal workers. The case was the only one in which the chamber joined forces with labor and civil rights groups and the federal government. Carter Phillips, who represented the chamber in that case, said the outcome suggests that for at least five members of the court, federal law does not trump state law on immigration matters as much as had previously been presumed.
First Amendment
Beyond the business cases, the other major theme that has emerged for this court is a very pure approach to the First Amendment.
Every legal case presents a clash of values, observes Stanford Law School Dean Larry Kramer. And for judges, as for the rest of us, "there are things we care about more and things we care about less ... for judges no less than anyone else, when a higher commitment comes in conflict with a lower one, the higher one wins."
Source: http://www.npr.org/2011/07/01/137538756/business-free-speech-winners-in-high-court-term?ft=1&f=1003