成人小说亚洲一区二区三区,亚洲国产精品一区二区三区,国产精品成人精品久久久,久久综合一区二区三区,精品无码av一区二区,国产一级a毛一级a看免费视频,欧洲uv免费在线区一二区,亚洲国产欧美中日韩成人综合视频,国产熟女一区二区三区五月婷小说,亚洲一区波多野结衣在线

立即打開(kāi)
What will Souter's retirement mean for business?

What will Souter's retirement mean for business?

2009年05月14日

????Justice favored limits on punitive damages.

????By Roger Parloff

????Though no one would ever pigeonhole U.S. Supreme Court Justice David Souter as having been a pro-business judge, the announcement this month that he'll be stepping down in June has some top appellate advocates for the business community expressing some separation anxiety.

????"Better the devil we know than the devil we don't know," says Evan Tager, a partner in Mayer Brown's supreme court and appellate practice group in Washington, D.C. "I prefer the status quo to having to worry about whether the next justice will be more consistently anti-business."

????In fact, with respect to at least one bread-and-butter issue for big business - constitutional limits on punitive damages - pro-business lawyers are positively fretting over Souter's departure.

????"There is at this point a narrow coalition in favor of constitutional limits on punitives," says Meir Feder, who heads the appellate practice in Jones Day's Manhattan office. "It would be very easy for the next nominee to be somebody who takes a very different, more pro-plaintiff view."

????Souter's pre-Supreme Court resume - which included just two years in private practice, both spent at a small firm in Concord, N.H. in the mid-1960s - afforded him little exposure to the concerns of big business. On the contrary, most of his early career was spent either in the state attorney general's office or on the state bench, where he naturally developed a healthy respect for the need to uphold state laws, whether they are being prosecuted directly by a state regulator or by a private plaintiffs lawyer suing within the framework of the state's tort system. Since business corporations are constantly running afoul of such assertions of state law, one of their standby "best friends" is the federal preemption doctrine - the notion that an existing federal regulatory framework should bar state regulators (including private plaintiffs lawyers invoking state tort law) from meddling in the same arena. Though never thrilled about the prospect of federal regulation, most corporations would rather cope with a single federal regulatory scheme than with fifty different state frameworks.

????Vis-à-vis such preemption issues, says Carter Phillips, "Souter has often been a hard vote for the business community to get. Hopefully, his replacement will be easier to persuade." Phillips, a partner at Sidley Austin's Washington, D.C., office, has argued 65 cases before the Supreme Court.

????Nevertheless, Justice Souter's apparent desire to curb certain civil litigation abuses has sometimes made him a valuable ally to business. Two years ago, for instance, Souter wrote the potentially momentous, pro-business ruling in Bell Atlantic v. Twombley, in which the Court heightened the preliminary showings that plaintiffs lawyers must make before they will be permitted to kick a case into its most expensive, full-throttle, discovery gear.

????But Souter's desire to rein in litigation abuse has been most apparent in his consistent votes to slash punitive-damage awards imposed by emotional juries. Last term, for instance, he authored the Court's decision in Exxon Shipping v Baker, which pared nearly $2 billion off a jury's punitive assessment against Exxon stemming from the 1989 Exxon Valdez oil spill. Though the case was not a constitutional ruling and related only to federal maritime cases, Souter suggested in a footnote that a 1:1 ratio between compensatory and punitive damages should represent a "fair upper limit" for punitive damages in nearly any case - a bright-line rule that, if ever adopted, would be a dream-come-true for the business community.

????Where a judge will come down with respect to whether there should be constitutional limits on punitive damages can't be divined from traditional "liberal" or "conservative" labels. Though political conservatism is often associated in the popular mind with pro-business, anti-plaintiff sentiments, conservative justices Antonin Scalia and Clarence Thomas have each been fairly consistent "anti-business" votes in punitive-damages cases. That's because each espouses austere, text-based interpretations of the Constitution that, each insists, afford no basis for federal judges to prune back state court jury awards.

????The justices who think the Constitution permits and, in fact, requires such trimming rely on the the so-called "substantive due process" concept, which is a controversial interpretation of explicit bans in the Fifth and Fourteenth amendments against state or federal deprivations of life, liberty or property without due process of law. But while no one disputes that these Due Process clauses bar certain government actions that are not preceded by, for instance, certain notice and hearing requirements - i.e., the "process" that is "due" under the circumstances - some justices also believe that certain government actions are so intrinsically beyond the pale that they "shock the conscience" and are forbidden regardless of whatever procedural measures may have preceded their adoption. Court scholars refer to these murkier outer reaches of the due process clause as "substantive due process" - a concept that many conservative jurists categorically reject. Not coincidentally, it is the open-ended substantive due process concept that has also served as the Court's root basis for striking down state laws banning abortion.

????The Court's two other most conservative justices, Chief Justice John Roberts and Associate Justice Samuel Alito, have yet to weigh in on whether they believe the Constitution imposes any restrictions on punitive damages awards. On the contrary, since joining the Court - Roberts in September 2005 and Alito in January 2006 - each has repeatedly ducked apparent opportunities to address the question.

????If politically conservative judges can't be counted on to favor constitutional limits on punitive damages, neither can politically liberal ones. While a liberal justice, like Ruth Ginsburg, might have no qualms about invoking the substantive due process clause in appropriate cases, she has seldom, if ever, had her conscience "shocked" by seeing a jury clobber a big corporation with a fat damage award. Thus, she is typically an "anti-business" vote in these cases. Liberal Justice Stephen Breyer, on the other hand, has been just as reliably pro-business in these matters.

????What makes business lawyers worry all the more about Justice Souter's replacement is that a parochial, relatively below-the-radar issue like punitive damages - at least when compared to issues like abortion rights or the constitutionality of campaign finance reform - is very unlikely to be a factor that enters into either President Barack Obama's selection of a nominee or the Senate's approval of one.

????So far, the hints President Obama has dropped about who he's looking for have been, for our purposes, unhelpfully vague and demographic. He will evidently choose a woman, would prefer that she be Hispanic, and will seek someone with "empathy" for the impact that High Court rulings have in the real world.

????None of the short-list names that have been bandied about so far appear to have track records that foreshadow predispositions on issues of importance to business. Nevertheless, lawyers interviewed for this story appeared to welcome the prospect of either Diane Pamela Wood, a judge on the U.S. Court of Appeals for the Seventh Circuit - who has a reputation for both top-notch intellect and polite, even temperament - or Elena Kagan, who was confirmed as the U.S. Solicitor General in March. Several noted with admiration that Kagan, as the former dean of the notoriously fractious Harvard Law School, had somehow managed to earn the respect of both the liberal and conservative factions there, demonstrating both useful diplomatic skills and an apparent absence of ideological rigidity.

????In any case, all the business community can realistically hope for is the selection of a open-minded moderate with a first-rate intellect, a judicial temperament, and a pragmatic, case-by-case judicial philosophy.

????Someone sort of like David Souter, in other words.

掃碼打開(kāi)財(cái)富Plus App
国产无码精品在线观看| 天天躁日日躁狠狠躁婷婷高清| 99久久精品国产波多野| 青春草在线视频观看| 国内精品久久久久久久影视麻豆| 麻豆乱码国产一区二区三区| 国产大神高清视频在线观看| 捆绑走绳虐乳调教小说| 色欲精品人妻AV一区二区三区| 中文字幕人妻第一区| 亚洲精品国产综合野狼| 国产福利91精品一区二区三区| 亚洲精品白浆高清久久久久久| 成人免费视频无遮挡在线看| 日本熟妇一区二区三区在线视频| 99久久久国产精品免费电影影片| 制服诱惑中文字幕一区不卡| 久久婷婷五月综合丁香人人爽| 国产精品久久久久9999高清| 99热在线精品免费播放6| 精产国品一二三产品区别在线| 久久久久久亚洲av无码专区| 日本大片免a费观看视频| 午夜精品A片一区二区 | 亚洲精品国产AV成拍色拍婷婷| 亚洲一区二区三区日本久久九| av一区二区三区不卡在线| 免费一区二区无码东京热| 欧美V国产V亚洲V日韩九九| 无码国产精品久久一区免费| 91精品国产日韩91久久久久久无码乱码| 久久久久99精品成人片| 永久免费一级aⅴ毛片网站| 中文字幕亚洲一区二区va| 欧美自拍另类欧美综合图区| 国产美女 91 在线播放 | 国产精品青青在线观看爽香蕉| 国产强被迫伦姧在线观看无码| 最近中文字幕2018高清| 欧美精品AⅤ一区二区三区| 亚洲精品无码久久久久y|