Holding Court

Corporate America was riveted on the Supreme Court this term as it issued a series of blockbuster opinions that reshaped IP, antitrust and employment law. Yet even in this banner year, the High Court published only 75 written opinions. Meanwhile, the powerful judges of the federal appellate courts are setting the law and policy that govern the way companies do business in the vast majority of cases. The circuit court judges are interpreting the often scant guideposts the Supreme Court provides, filling in the gaps in the High Court's jurisprudence and sometimes telling the Supremes which way to go. We talked to appellate litigators around the country to find out which circuit court judges the in-house bar should be watching. The following pages highlight the jurists who--for better or worse--are shaping the way you do business.

7th Circuit
Judge Richard Posner is an intellectual behemoth--not only is he a leading legal scholar, but also a well-known economic thinker, frequent blogger on social and political topics, long-time lecturer at The University of Chicago and author of nearly 30 books on everything from post-September 11 intelligence reform to literary plagiarism.

Judge Posner's intellectual cachet translates to national influence. In a 2004 study published in the University of Southern California Law Review that rated circuit judges' suitability for the Supreme Court based on their productivity, the quality of their opinions and their independence, Judge Posner and his 7th Circuit colleague Frank Easterbrook so far outstripped the competition in every category that the study's author had to remove them from the rankings in order to come up with other candidates. The study showed Judge Posner to be the circuit judge most often cited outside his circuit, as well as the circuit judge the U.S. Supreme Court most often cites.

And Judge Posner's clout is a good thing for business. Among his many influential decisions, he established in the 1998 case In Re Rhone-Poulenc Rorer Inc. that courts should not certify class actions in cases that turn on the resolution of complex factual questions. He argued that class certification puts undue pressure to settle on a defendant who might not have done anything wrong. He is openly hostile to most antitrust regulation, deeming it economically inefficient. And in the 2007 case Yuknis v. First Student Inc., he ruled that an employee who alleged her manager watched porn in his office, called a female employee a "fat ass" and described sexual encounters between his cats did not have a cause of action for sexual harassment--making the 7th Circuit the toughest place in the nation to sustain a harassment claim.

But although Posner is regarded as solidly conservative and pro-business, part of his tremendous influence resides in his unpredictability. "Posner is idiosyncratic," says Carter Phillips, partner at Sidley Austin. "He has such a quirky style that everybody wants to read whatever he writes."

D.C. Circuit

Judge Merrick Garland
Often cited as a likely Supreme Court nominee should a Democrat win the presidency in 2008, Judge Merrick Garland is a just-left of-center jurist many consider Democrats' answer to Chief Justice John Roberts.

"Judge Garland is moderate, exceptionally bright and tremendously principled," says Robert Weiner, a partner at Arnold & Porter and a former colleague of Garland.

"You can't predict his rulings on an issue, but you've always got a fair shake when you go before him." Among Judge Garland's most influential business decisions:

Sparrow v. United Air Lines (2000)
Sparrow made it easier for employment discrimination plaintiffs to take their cases to trial. The decision established that a Title VII complaint does not need to set out a prima facie case of discrimination to survive a defense motion to dismiss.

Rather, Garland held, plaintiffs only have to state the general facts that give rise to their lawsuits. The Supreme Court adopted Sparrow's reasoning in 2002 in Swierkiewicz v. Sorema.

Graham v. SEC (2000)
In Graham Garland held the SEC can sanction an individual for aiding and a betting securities fraud without proving that person acted with knowledge that the underlying conduct was fraudulent. Garland ruled the SEC can impose sanctions if it has facts that show accused abettors acted with "severe recklessness"--in effect that they saw "red flags" that should have alerted them to the fraudulent act.

Sierra Club v. EPA (2004)
Garland admonished the EPA for approving Washington, D.C.'s ozone control plans, ruling that the plans lacked required elements of specific, enforceable emissions control measures. "We agree with Sierra Club's contention that EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the Act requires today," Garland wrote.

9th Circuit

Few attorneys have a neutral opinion about Judge Stephen Reinhardt.

Loved by the left and loathed by the right, Judge Reinhardt has a well-earned reputation for being the nation's most liberal judge. Among his many headline-grabbing opinions, he famously ruled in 2003 that reciting the Pledge of Allegiance in public schools is unconstitutional because of the words "under God," and in 1996 upheld the right to physician-assisted suicide.

But Reinhardt isn't infamous only for his liberal attitude toward social issues. He also has issued some hair-raising business opinions that keep the defense bar awake at night. For example in his 2004 decision in Texaco v. Dagher, he ruled that a lawful joint venture between Shell Oil and Texaco that set a unified price for gasoline could be liable for a perse violation of the Sherman Act; in Duffield v. Robertson Stephens & Co. he ruled that employers could not force employees to arbitrate Title VII claims even if they voluntarily signed mandatory arbitration agreements; and in Chevron USA Inc. v. Echazabal he ruled the EEOC exceeded its rule making authority when it allowed employers to refuse to hire an applicant who would endanger his own health by performing the job.

The one bright spot for corporate defendants that face Judge Reinhardt is that the Supreme Court is keeping him on a tight leash. In 2006 and 2007 alone the High Court reviewed and reversed Judge Reinhardt's rulings five times (including in Texaco). By most counts Reinhardt is the nation's most overturned federal judge. Yet, appellate litigators don't attribute Judge Reinhardt's frequent reversal to poorly reasoned decisions, but rather to an ideological difference between Reinhardt and the much more conservative Supreme Court bench.

"He's extremely smart," says one prominent appellate litigator who wished to remain anonymous, "but he has his point of view and sticks to it."

D.C. Circuit

Senior Judge Laurence Silberman
President Reagan appointed Republican Party insider Laurence Silberman to the powerful D.C. Circuit in 1985.

After short stints in a few law firms following his graduation from Harvard Law School in 1961, Silberman served in a variety of government roles of increasing prominence in the Nixon and Reagan administrations, ranging from undersecretary of labor to ambassador to Yugoslavia. Silberman recently was in the news as the co-chair of the Bush administration commission that investigated the intelligence community's work leading up to the U.S. invasion of Iraq.

Throughout his more than 20 years on the federal bench, Silberman has been solidly conservative. In the 1998 case Lutheran Church-Missouri Synod v. FCC he held unconstitutional the FCC's equal employment opportunity rule, which required broadcasters to hire minorities. In Parker v. District of Columbia he struck a Washington, D.C., handgun ban, finding it violated the Second Amendment. And in Pearson v. Shalala, he tossed a FDA regulation that barred makers of diet supplements from making any health claims about their products.

We spoke to Noel J. Francisco, a partner in the appellate litigation practice at Jones Day, about what makes Judge Silberman one of the most important members of the federal judiciary.

What should corporate America know about Judge Silberman?
Judge Silberman has a long and storied Washington career. When he was a bit younger, he was often talked about as a Supreme Court candidate, which both highlights the high regard in which he is held and elevates the prominence of the decisions he issues as a judge on the D.C. Circuit.

How would you sum up his judicial posture toward issues of importance to business?
He approaches cases with a rule of law framework in mind. He understands that businesses need certainty in the law. Even if businesses don't like the end result of a case, they at least have clear guidelines for what they have to do to comply with the law going forward.

In what areas of law is Judge Silberman most influential?
He is very much known for his administrative law expertise, which effects business heavily, especially in regulated industries. He is also known for his work on separation of powers issues and constitutional law.

2nd Circuit

Judge Guido Calabresi has been scaring corporate America since long before President Clinton appointed him to the bench 13 years ago. In 1970 Calabresi, then a law professor at Yale, wrote "The Cost of Accidents: A Legal and Economic Analysis," in which he advocated throwing out the established rules of tort law, which assign liability based on fault, in favor of strict liability for activities that cause injury.

Calabresi remains just as left-of-center today. He caused a huge uproar when he gave a speech at a 2005 meeting of the American Constitution Society in which he compared the result of Bush v. Gore with Mussolini's rise to power in fascist Italy. The incident led to a public reprimand from the 2nd Circuit's chief judge and a published apology from Judge Calabresi, in which he described the remarks as "a rather complicated academic argument" that went awry.

Indeed, the former Yale Law School dean is one of the federal bench's most academic jurists. He's a frequent author of special concurrences--many of which seem designed in large part to satisfy his intellectual curiosity. In the 2004 case Restrepo v. McElroy, for example, he wrote a concurrence of several pages, first noting that, "while not needed to decide this case, I think that an explanation of the current state of the law in this complicated area ... may be useful."

But Calabresi's theoretical approach to the law doesn't lessen the very real impact his decisions have on businesses. One of his most influential--and widely criticized--decisions was Desiano v. Warner-Lambert & Co. In that 2006 case he ruled that federal law did not preempt a Michigan statute that allowed consumers to sue drug companies over FDA-approved drugs in certain circumstances. In reaching his decision, Judge Calabresi went out of his way to assert the courts' authority and snub the FDA, writing that federal courts do not have to defer to regulators' rules in the absence of clear Congressional intent for a regulation to preempt state laws.

"The decision allows plaintiffs to sue companies in tort cases for doing what regulators tell them to do," an appellate litigator who wished to remain anonymous explains. "Under that reasoning, judicial judgment substitutes for federal regulation."

1st Circuit

Chief Judge Michael Boudin is the exact kind of lawyer corporate America wants on the federal bench. The Harvard Law grad clerked for 2nd Circuit Judge Henry J. Friendly and Supreme Court Justice John M. Harlan before joining the antitrust practice at blue-chip firm Covington & Burling.

Boudin was in private practice at Covington until 1987, when he became deputy assistant attorney general in the DOJ's antitrust division. After a short stint as a trial judge in Washington, D.C., Boudin was appointed to the 1st Circuit in 1992. He began a seven-year stint as chief judge in 2001.

We asked Robert N. Weiner, an appellate litigator at Arnold & Porter in Washington, D.C., why Judge Boudin should be on in-house counsel's radar.

What should corporate America know about Judge Boudin?
He's a moderate judge who follows in Judge Friendly's path. His decisions are erudite and thoughtfully considered. He was an antitrust lawyer before he went on the bench, so his opinions in that area have particular weight.

How would you sum up his posture toward issues of importance to business?
He's right down the middle and takes each case individually. His analysis of issues is always sophisticated, which is a benefit to arguing in his court.

What are his most important decisions?
He issued a highly important decision in DM Research Inc. v. College of American Pathologists. This case paved the way for the Supreme Court's recent decision in Bell Atlantic Corp. v. Twombly, which established that a court can dismiss implausible allegations of a conspiracy in an antitrust case before the parties go through all the trouble of discovery. Judge Boudin dealt with the same issue in 1999, and the Supreme Court cited that ruling.

4th Circuit

Judge J. Harvie Wilkinson III is a conservative in the most traditional sense of the word. A strong proponent of judicial restraint, Wilkinson is a consistent, moderate jurist who is not easily swayed by ideology or politics. Corporate defendants can't expect slam-dunk wins in his courtroom, but are guaranteed a fair hearing if they craft sound legal arguments based in precedent and fair interpretations of applicable statutes.

"Wilkinson does not always come up with a result that businesses like," says Noel Francisco, a partner in the appellate litigation practice at Jones Day, "but he does provide clear, well-reasoned opinions that let companies know what they have to do to comply with the law."

Among Judge Wilkinson's most inf luential decisions is Richmond v. JA Croson, a 1987 case in which he struck as unconstitutional a Richmond, Va., policy that set aside a certain percentage of city contracts for minority-owned companies. Justice Sandra Day O'Connor adopted Wilkinson's reasoning when the Supreme Court decided the case in 1989. In Falwell v. Flynt--in which Rev. Jerry Falwell sued Hustler after it lampooned him in a parody advertisement--Wilkinson wrote a strong dissent to the 4th Circuit's denial of en banc rehearing of judgment for Falwell, arguing the First Amendment protected the parody. Again, the Supreme Court adopted Wilkinson's language when it heard the case.

Although he has the respect of the High Court, Judge Wilkinson probably won't find himself there any time soon. He once was considered President Bush's leading candidate for nomination to the Supreme Court bench, but many experts say he damaged his chances when he told the New York Times about his interview with the president, revealing that the president asked him several questions about his exercise habits in addition to asking him about his time on the bench.

"Nonetheless, the fact that he is often talked about as a Supreme Court nominee means that his opinions have a national audience," Francisco says.

Judge J. Harvie Wilkinson III is a conservative in the most traditional sense of the word. A strong proponent of judicial restraint, Wilkinson is a consistent, moderate jurist who is not easily swayed by ideology or politics. Corporate defendants can't expect slam-dunk wins in his courtroom, but are guaranteed a fair hearing if they craft sound legal arguments based in precedent and fair interpretations of applicable statutes.

"Wilkinson does not always come up with a result that businesses like," says Noel Francisco, a partner in the appellate litigation practice at Jones Day, "but he does provide clear, well-reasoned opinions that let companies know what they have to do to comply with the law."

Among Judge Wilkinson's most inf luential decisions is Richmond v. JA Croson, a 1987 case in which he struck as unconstitutional a Richmond, Va., policy that set aside a certain percentage of city contracts for minority-owned companies. Justice Sandra Day O'Connor adopted Wilkinson's reasoning when the Supreme Court decided the case in 1989. In Falwell v. Flynt--in which Rev. Jerry Falwell sued Hustler after it lampooned him in a parody advertisement--Wilkinson wrote a strong dissent to the 4th Circuit's denial of en banc rehearing of judgment for Falwell, arguing the First Amendment protected the parody. Again, the Supreme Court adopted Wilkinson's language when it heard the case.

Although he has the respect of the High Court, Judge Wilkinson probably won't find himself there any time soon. He once was considered President Bush's leading candidate for nomination to the Supreme Court bench, but many experts say he damaged his chances when he told the New York Times about his interview with the president, revealing that the president asked him several questions about his exercise habits in addition to asking him about his time on the bench.

"Nonetheless, the fact that he is often talked about as a Supreme Court nominee means that his opinions have a national audience," Francisco says.

Four Questions for David Lat

Few attorneys know the circuit courts as well as former corporate litigator and federal prosecutor David Lat.

Lat made waves a few years ago with his humorous, irreverent blog "Underneath Their Robes"-- essentially a celebrity gossip rag about the federal judiciary. Under the pseudonym Article III Groupie, Lat wrote about the lives and personas of federal judges on and off the bench.

Sometimes his coverage focused on the courtroom; other times it focused on slightly less lofty pursuits--such as his infamous "Judicial Superhotties" contest. We sat down with Lat to find out what exactly makes circuit judges so fascinating.

What is so fascinating to you about circuit court judges?
They are the closest thing America has to an aristocracy. They're life-tenured; they make decisions of great importance that affect millions of people; and within the legal community, they are idolized.

Why are they important to businesspeople?
Because so few cases ever make it to the Supreme Court, the circuit courts are shaping the law of the land in the vast majority of cases. They play a major role in shaping areas such as securities law and bankruptcy law. These are areas in which the Supreme Court will take a case once a term or once every two terms, but most of the time the circuit judges decide the cases upon which the fate of your company might hinge.

What sparked your obsession with the federal judiciary?
I have a bifurcated personality--I am very interested in the law and also in celebrity culture. And federal judges are as close as you come to combining those two things. People want to know the personal details about judges just like we all know more than we might want to about Brad Pitt and Angelina Jolie's tangled relationships.

Who are your five favorite circuit court judges?
I have to start with Diarmuid O'Scannlain on the 9th Circuit, for whom I clerked. Then I would pick Alex Kozinski of the 9th Circuit, who nominated himself in my Judicial Superhotties contest. So many judges just want to be dispensers of opinions but Kozinski is a fun and colorful person. Richard Posner is another. He is, of course, brilliant.

And he is such a polymath. He's written a book on everything. I would also pick Frank Easterbrook because he's one of the best writers in the federal judiciary, and he has a great dry wit. Finally, I would pick Kim Wardlaw on the 9th Circuit. She's the fulcrum of a court that has very strong liberal and conservative wings and she's a fabulous, stylish individual.

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