March 17, 2008

Supreme Court Amicus Briefs in Punitive Damages Cases

Jeffrey Rosen's article about the pro-business leanings of the U.S. Supreme Court (see earlier post here) contains an interesting quote from David Vladeck, who used to work for the Public Citizen Litigation Group and is now a law professor at Georgetown. Vladeck contends that U.S. Supreme Court cases pitting consumer lawyers against big business have not been fair fights, because business interests generate more amicus briefs:

“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.” He added, ruefully, “You admire their handiwork, but it’s frustrating as hell to deal with.”

The numbers don't support Vladeck's complaint, at least not in the Supreme Court's recent punitive damages cases. To the contrary, it is the pro-plaintiff groups that have generated more amicus briefs. For example, in the Exxon Valdez case currently pending before the court, the Supreme Court's docket lists 16 amicus briefs on the merits in support of the plaintiffs, compared to only seven amicus briefs for the defense. In the court's previous punitive damages case, Philip Morris v. Williams, the docket shows the amicus briefs were more evenly distributed, with each side generating 12 amicus briefs on the merits.

Perhaps the punitive damages cases are atypical. Maybe a study of all the Court's business cases over the last few years would support Vladeck's assertion. But looking at the punitive damages cases, it does not appear that the plaintiffs' bar is having any trouble generating amicus briefs to support their positions.