December 17, 2008

Findlaw Column: Anthony Sebok Analyzes Williams III Oral Argument

In his Findlaw column, Professor Anthony Sebok summarizes the history of the Philip Morris v. Williams litigation and offers some cautious predictions about the likely result of that case's third trip to the U.S. Supreme Court. Prof. Sebok seems to think it's a close call, but an affirmance is the most likely outcome. His prediction differs from my guess that a 5-4 reversal is more likely.

Prof. Sebok's prediction seems to be based on his observation that Justice Breyer, who wrote the opinion in favor of Philip Morris in Williams II, now seems to be leaning towards the plaintiff. I agree that Justice Breyer's seems inclined to affirm, but I don't think that necessarily means the plaintiff will win. In my view, Justice Scalia, who dissented from Justice Breyer's opinion in Williams II, now seems to be clearly leaning towards reversal. If Justices Breyer and Scalia switch sides and everything else stays the same, Philip Morris will prevail again. (Although I'm not as certain about this, I think some of the others, particularly Justices Souter and Thomas, may end up switching sides as well.)