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Friday, October 21, 2005

Harriet Miers and the "Good for Business" Question

Is Harriet Miers a pro-business candidate?  Is she a business law maven?  Corporate law bloggers such as Gordon Smith, Stephen Bainbridge, Joe Miller, and Larry Ribstein have weighed in on the issue. 

I think it's important to separate out expertise from ideology here.  A nominee may have experience with and interest in business law matters but still be unacceptable to the Chamber of Commerce.  To analogize to constitutional law, whether a nominee is knowledgeable and experienced in constitutional law matters is a different question from whether she would overturn Roe v. Wade. 

As to expertise, I think that "business law"  covers a much wide ranger of subjects than constitutional law, and thus it is hard to say that one is an expert in business law.  After all, business law easily encompasses corporate law, securities law, contracts, bankruptcy, insurance law, labor and employment law, pension & ERISA law, and commercial law.  Subjects like intellectual property, products liability, environmental law, real estate law, and health law are of critical importance to businesses.  Even areas like administrative law and international law involve questions with significant business impact.  (WTO, anyone?)

Moreover, beyond a few basics, it's hard to say what a "pro-business" legal ideology would be.  Sure, it might be easier to ascertain what a Chamber of Commerce nominee would support, but the Chamber of Commerce does not equal "business."  Of the seven cases that Harriet Miers argued on appeal, three involved a business against another business (e.g., Disney v. Esprit Finance).  In these cases, which outcome was "pro-business"?

To me, Harriet Miers doesn't look like a pro-business nominee; she looks like a big-law-firm nominee.  There's a difference.  Big law firms are likely to cater to big, institutional clients on a variety of matters.  To generalize a bit, they bill by the hour, spend a lot of time and attention on matters, and prize their client relationships.  They are influential in local and state bar associations.  They may like business, but they like the practice of law as well.  So in the areas that a wide range of businesses might most be looking for help -- tort reform, damage caps, harsher pleading requirements -- a big-firm nominee (with ABA leadership experience) might feel a twinge in restricting or limiting the role of lawyers in the process.

If you asked Harriet Miers whether she was more favorably inclined towards business or towards the practice of law, I think she'd favor the lawyers.  She was a state bar association president.  She's run a government agency.  She's never been a general counsel or run a business.  Her litigation experience is the type of experience that a big firm attorney would have. 

Harriet Miers may have more experience as a corporate litigator than her fellow justices, and thus would come to the job with that additional array of experiences.  It's too simple, though, to say that she is a pro-business nominee. Once she's recognized as a big-firm nominee, the plethora of other potential candidates becomes clear.

Posted by Matt Bodie on October 21, 2005 at 12:53 AM in Corporate | Permalink

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Matt Bodie of Prawfsblawg (via Blawg Review #29):I think it's important to separate out expertise from ideology here. ...Moreover, beyond a few basics, it's hard to say what a "pro-business" legal ideology would be. Sure, it might be easier to... [Read More]

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Comments

I think your analysis is spot-on, and sounds variations on themes that Larry Ribstein wrote about as well.
The corporate general counsel idea is one that strike me as especially interesting. One reason is that, as a large corporate general counsel, one must cope (I imagine) with a fairly broad range of the many business law questions you list. Perhaps Larry Thompson, now PepsiCo's General Counsel, will get another look ... again.

Posted by: Joe Miller | Oct 21, 2005 1:26:31 PM

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