Last week, I spoke on a panel with other conservatives at the American Antitrust Institute, an organization that supports private enforcement of the antitrust laws—i.e., the antitrust plaintiffs’ bar. The group brought me there to talk about my book, The Conservative Case for Class Actions, but there was also interest in learning about how to make textualist and originalist arguments to a judiciary now stocked with Federalist Society members. On that, I told the group two things.
First, I think there is now more opportunity than ever before to interest Federalist Society members in becoming plaintiffs’ lawyers. As big corporate defense law firms push conservatives out the door, my students who are in the Federalist Society have become less enamored with working there. They are open to working at plaintiffs’ firms if those firms will be more tolerant of their civic engagements and pro bono work. There is now a real opportunity for plaintiffs’ firms to attract talented lawyers who really believe in and who have thought seriously about textualism and originalism; in my view, these are the lawyers who will make the most effective textualist-originalist arguments for their clients.
Second, I think the judiciary really is more receptive to these arguments now than it ever has been. There was skepticism in the room that even judges who came up through the Federalist Society follow the methods when the methods conflict with their policy preferences. But I actually think the opposite is true: not only are our judges true believers, but many of them are eager to show that the methods are politically neutral; they are more than happy to reach outcomes that don’t fall on the conservative side. Moreover, what the “conservative side” is is itself in flux. I am not sure the U.S. Chamber of Commerce has ever been less popular in the Republican Party, and, dare I say, the Federalist Society, in my entire lifetime. Thus, the plaintiffs’ bar can go into some fights with a double barrel weapon.
I shared with the group some recent examples. One was an amicus brief I recently filed in the Ninth Circuit arguing that the Federal Arbitration Act does not preempt the application of California’s unconscionability law to a “mass arbitration” agreement. The text of the Federal Arbitration Act says it does not preempt generally applicable state contract law, but, I am sorry to say, in one of Justice Scalia’s worst opinions, AT&T Mobility v. Concepcion, the Supreme Court held that state unconscionability laws could frustrate the purposes of the FAA and thereby get preempted that way. Many textualists reject this so-called “obstacle preemption,” and my amicus brief reminded the Ninth Circuit of that. But, given that Concepcion is Supreme Court precedent, that was not enough to win the case. Instead, I made a second argument: that the original understanding of the word “arbitration” in 1925 when the FAA was enacted did not encompass “mass arbitration”; it only included bilateral, one-on-one arbitration. Thus, the FAA was inapplicable from the get-go. Last week, the Ninth Circuit agreed, including a long concurring opinion embracing the theory from Judge VanDyke, who is no stranger to readers of this blog.
Another example is a securities fraud case that will be argued at the U.S. Supreme Court next week: NVIDIA Corp. v. E. Ohman J:or Fonder AB. Much of the briefing on both sides invoked the usual parade of horribles that would ensue if we did or did not make it harder to sue corporations for securities fraud as well as attempts to spin various precedents. But I filed an amicus brief that cut straight to the text of the Private Securities Litigation Reform Act: the words “on information and belief” and “with particularity” were well-known terms of legal art that had established meanings in 1995 when the PSLRA was enacted. Those meanings easily answer the questions presented. Stay tuned to see if any of the Justices will agree.
But even if I don’t win that one, the point still stands: there are a great many opportunities to add value on the plaintiffs’ side of the bar, and they are eager for our help.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].