Legal News

Does the Supreme Court Need more ?Business Lawyers? as Justices?

By Ashby Jones

Has Sonia Sotomayor really only been a Supreme Court nominee for four days? Oh how it feels like four months.

In any event, we’re trying to resist the urge to blog on every little Sonia Sotomayor kerfuffle springing up in various corners of the mighty interwebs. But we recently stumbled upon one that tickled our law-and-business fancy.

Here’s the deal. On Wednesday, longtime National Review contributor David Frum had this to say to Law Blog All-Name team member Kai Ryssdal on the NPR show Marketplace:

[T]he current court justices have strikingly little experience as business lawyers. . . .

President Obama has talked of his desire for “empathy” in his nominees. Yet ironically, with this judicial pick, he has confirmed a trend toward judges whose experience of business law is abstract and academic — who do not know what it means to explain to a client that what was a secured debt yesterday is not a secure debt today. A little empathy for the people who make America’s economy go.

Thursday, Frum amplified his thoughts on NewMajority.com: “Main point: Sonia Sotomayor reaffirms the Supreme Court’s 8 to 1 bias against lawyers with a background in business law. [Aside from Stevens], all have backgrounds in academia and government. Now one more.”

The commentary got picked up in a number of places. Some were approving, like BYU professor Gordon Smith, who wrote on the Conglomerate Blog: “Why not appoint a transactional lawyer? David Frum is right: our current justices don’t know much of anything about business. And it shows when they try to write opinions.”

University of Chicago Professor Bernard Harcourt (who’s rocking an awesome theater-director look in his faculty pic), however, took issue with Frum’s commentary on Balkinization, calling it “deliberate misrepresentation”:

“Mr. Frum acknowledged to me that he knows full well that Judge Sonia Sotomayor was an attorney at a corporate law firm and handled cases involving large corporate clients. In fact, Mr. Frum wrote to me: “As you surely know well, Sonia Sotomayor’s private-sector work was very far from business counseling of the kind that I described. She worked mostly on enforcing trademarks against counterfeiters. (Fendi was a big client).’”

Finally, mere hours ago, Alabama law professor Paul Horwitz (rocking a more, uh, lawyerly look in his faculty pic) advanced the ball a bit more over at Prawfsblawg:

But there is indeed a significant distinction between being a private litigator for business and bring a corporate practitioner, whether in-house (especially in-house) or at a big firm. Litigators come along after the mess has been made, and take the law as a tool in resolving a dispute; they do not work on planning to avoid messes as such. The nature of their exposure to business, and to business law, is very different from the kind of experience of business one has as a transactional or in-house lawyer, and it is quite possible — I know! — to work for many years as a litigator, working for some of the nation’s largest businesses, without having a tremendously well-developed sense of the business environment, of what businesses need to do to flourish, or even of significant aspects of business law that are part of the planning rather than the litigation stage of corporate life.

A few questions. First, does the Court need more justices with a “business law” background? And if the answer is yes, does Judge Sotomayor’s experience as an IP litigator qualify her as having that background — or do we need someone steeped in transactional law to provide that?

Full post as published by Law Blog - WSJ.com on May 29, 2009 (boomark / email).