The Limits of Quantitative Analysis
The arguments that the Roberts Court is unduly sympathetic to business concerns got a boost when three prominent researchers—Lee Epstein, William Landes, and Judge Richard Posner—published a study purporting to show that the Roberts Court has been far more sympathetic to business concerns than has any Court of the past sixty to seventy years. This charge, by itself, should raise suspicion. How can it be said that a Court that refuses to expand existing causes of action against corporations is more probusiness, in any meaningful sense, than a Court that did not recognize any such causes of action at all? Any serious longitudinal analysis would also need to account for the growth of tort litigation, regulatory agencies, citizen suits, and other exogenous changes that have drawn courts into business-related policy questions.
The Epstein-Landes-Posner (ELP) study was certainly the most comprehensive quantitative examination of the Supreme Court’s handling of business- related cases in the post-New Deal era. But it also had its limitations. Among other things, the methodology chosen by the study’s authors—determining whether a business interest won or lost in each case and then tallying up the decisions and individual justices’ votes—doesn’t account for the content of the decisions or the doctrinal baseline. As a consequence, a court may actually produce probusiness decisions that are less business friendly than decisions deemed “antibusiness.”
The ELP study characterizes the Roberts Court as more “business friendly” than prior courts because the Roberts Court ruled in favor of business litigants more often than did its predecessors in cases in which business litigants faced off against a “non-business entity expected to have an adverse view of business, such as a union or the government.” This methodology treats all votes in favor of the business litigant equally, no matter what was at stake. The reason this matters is because the legal baselines have shifted dramatically in the period under study.
A simple example should serve to illustrate the point. Suppose that in Period A the Court has yet to recognize an implied cause of action against corporations for a particular type of securities fraud, perhaps because no such case has ever arisen. Then, in Period B, the Court votes 6-3 to recognize the cause of action. Some years later, in Period C, the Court votes 6-3 to reject further expansion of the cause of action, but does not overturn or limit the decision from Period B. Under the ELP methodology, the Court has become more probusiness over time. It would rate the Period C Court as more probusiness than that of Period B, even though the law is no more business friendly than it had been before and remains less business friendly than it had been in Period A. In what sense, then, would the Period C Court be called probusiness? Perhaps a refusal to bless new avenues of litigation against corporations is probusiness, but it could equally be the result of a status quo bias or judicial minimalism. To truly understand the Court, we must ask questions that lie beyond quantitative tallies of reductionist characteristics of the Court’s decisions so that we may develop a deeper understanding of why the Court may reach probusiness outcomes in some types of cases but not in others.
-  See Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the SupremeCourt, 97 Minn. L. Rev. 1431 (2013).
-  Id. at 1471.
-  For additional critiques of the ELP study, see Jonathan H. Adler, Business and the Roberts CourtRevisited (Again), Volokh Conspiracy (May 6, 2013, 11:20 PM), available at http://volokh.com/2013/05/06/business-and-the-roberts-court-revisited-again/ (last accessed February 17, 2016).