The Making of the Supreme Court Bar: How Business Created a Solicitor General for the Private Sector

Jeremy Pilaar
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引用次数: 2

Abstract

This Essay tells a simple but important story about power and the law: that of the rise of the modern Supreme Court bar. Since 1985, a small cadre of private attorneys has come to dominate Court advocacy. While the share of lawyers making their first arguments before the justices fell from 76% to 43% between 1980 and 2007, the fraction with ten or more arguments under their belt rose from 2% to 28%. Similarly, while litigators with five or more previous arguments were responsible for 5.8% of the case petitions granted in October Term 1980, that quotient soared to 55.5% by 2008. This elite bar disproportionately influences the Court's activity. Of the 17,000 lawyers who petitioned the Court from 2004 to 2012, the top sixty-six succeeded in getting their cases heard six times more often than their competitors. Interviews with former Supreme Court clerks, who read and summarize cert petitions for the justices, confirm that they place outsized weight on briefs filed by prominent advocates. Statistical analysis further shows that these lawyers significantly raise a party's chance of success on the merits. The bar's success on behalf of business has induced a form of "docket capture." As legal scholar Richard Lazarus has observed, the bar has forced a surge in antitrust cases that has softened anti-monoppolistic doctrine and cleared the way for aggressive mergers. It has similarly managed to persuade the justices to limit punitive damages in mass tort litigation. The bar has therefore played a crucial role in making today's Court one of the most business friendly in the nation's history.
最高法院律师的形成:企业如何为私营部门创造副总检察长
这篇文章讲述了一个关于权力和法律的简单而重要的故事:现代最高法院律师的兴起。自1985年以来,一小部分私人律师开始主导法庭辩护。1980年至2007年间,在法官面前进行第一次辩论的律师比例从76%下降到43%,而进行过10次或以上辩论的律师比例从2%上升到28%。同样,在1980年10月,有5个或5个以上案件的诉讼人受理了5.8%的案件,但到2008年,这一比例飙升至55.5%。这个精英酒吧不成比例地影响着最高法院的活动。在2004年至2012年向最高法院请愿的1.7万名律师中,排名前66位的律师胜诉的几率是竞争对手的6倍。对前最高法院书记员的采访证实,这些书记员会为大法官阅读和总结认证请愿书,他们对知名律师提交的摘要给予了极大的重视。统计分析进一步表明,这些律师显著提高了当事人胜诉的几率。律师事务所代表企业的成功引发了某种形式的“案卷捕获”。正如法律学者理查德•拉扎勒斯(Richard Lazarus)所观察到的,律师事务所迫使反垄断案件激增,这软化了反垄断原则,为激进的合并扫清了道路。它同样成功地说服法官在大规模侵权诉讼中限制惩罚性赔偿。因此,在使今天的最高法院成为美国历史上对商业最友好的法院之一的过程中,律师协会发挥了至关重要的作用。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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