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Tuesday, October 06, 2009

The Supreme Court and Business

The Supreme Court’s new session kicks off this week. Whenever there is a new appointment to the Court or when a new session starts, some wonder why the business community should care.

Well, as an October 5 New York Times piece made clear, the Court weighs in on a great deal of issues impacting how business operates. After all, the title of the piece was “New Court Terms Hints at Views Regulating Business.”

The Times noted:

• “The new Supreme Court term that begins Monday will be dominated by cases concerning corporations, compensation and the financial markets that could signal the justices’ attitude toward regulatory constraints at a time of extraordinary government intervention in the economy.”

• “Professor Pildes [of New York University] pointed to two cases in particular, one concerning the constitutionality of a regulatory board created in the wake of the Enron accounting scandal, the other about what role the courts should play in setting the compensation of advisers to mutual funds.”

• “By the time the justices left for their summer break in June, a majority of the cases they had agreed to hear — 24 of 45 — concerned business issues, according to a tally by the National Chamber Litigation Center of the United States Chamber of Commerce. The corresponding numbers last year were 16 of 42.”

• “A case re-argued in September and technically part of last year’s docket, Citizens United v. Federal Election Commission, No. 08-205, is another example of the court’s more intensive focus on the limits of government regulation of businesses. The question in the case, which centers on the documentary “Hillary: The Movie,” is whether the government may ban political speech by corporations that concerns candidates during campaign season.”

• “The case that has most transfixed the business community is Bilski v. Doll, No. 08-964, a patent dispute that addresses the consequential question of whether intangible business methods may be patented. A federal appeals court last year rejected Bernard L. Bilski’s attempt to patent a method of hedging risks in commodities trading, ruling that only processes tied to a particular machine or capable of transforming an object into something different can be patented. A broad ruling could affect many aspects of the economy, notably computer software.”

Raymond J. Keating
Chief Economist
Small Business & Entrepreneurship Council

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