My Concern With Kagan

So President Obama has nominated Elena Kagan to the Supreme Court. He certainly could have done worse. I am not without concerns and chief among them is that Kagan is a scholar of public law. Given that the vast majority of the Court’s docket concerns public law this may seem like an odd concern. I certainly prefer the study of contract law to administrative law, but the Supreme Court is seldom called on to decide private law issues while public law cases form its bread and butter.

With the exception of a brief stint in private practice, Kagan has spent her entire career either in government or else in academia studying the processes of government regulation. She shows little academic or professional interest in business. This is important because while public regulation makes up the bulk of the Court’s docket, private businesses are overwhelmingly the target of that regulation. Everything in Kagan’s career, however, suggests that she is intellectually geared to look at the regulatory process from the government’s point of view. For example, in law school I had an advanced seminar on administrative law from Kagan. It was an interesting class, mainly focused on the competition between bureaucrats and political appointees. In our discussions businesses were always conceptualized as either passive objects of regulation or pernicious rent-seekers. Absent was a vision of private businesses as agents pursuing economic goals orthogonal to political considerations. We were certainly not invited to think about the regulatory process from the point of view of a private business for whom political and regulatory agendas represent a dead-weight cost.

At this point we can expect the obligatory dance around abortion rights and other hot button issues. We can expect a discussion of Kagan and the military. (I’ve got ideas for a post on the unfortunate disconnect between the culture of law schools and the culture of the military; stay tuned.) We can expect a rehash of the merits of umpires versus empathy. While discussing empathy, however, it’s worth thinking about the problems of a Court that is increasingly packed with justices who have had limited practical or intellectual engagement with the world of business.

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8 Responses

  1. Vladimir says:

    I don’t think we need more pro-business types on the most pro-business Court since the Lochner era. To have someone sympathetic to regulators, who sees things from the perspective of the government, for once, would be a blessing. In this era of corporate misfeasance, when what we need is not only more regulation, but also a court willing to interpret this new regulatory wave generously, in order to keep corporate power at bay.

  2. dave hoffman says:

    I don’t think that familiarity with businesspeople means being “business friendly,” but rather understanding that the stereotype of evil business (or self-interested, maximizing, business) is a bad fit for reality. And I agree with what I take to be Nate’s point, which is that we have plenty of people on the Court already who see things “from the perspective of the government,” sad to say.

  3. Jamison Colburn says:

    I’m not sure what the post means by a “government point-of-view.” It strikes me as either very interesting or very wrong. In practice, there is no more a single “government” point of view than there is a unitary “business” point of view.

  4. Kent Larsen says:

    Nate, it might be good if you put this criticism in context of the current members of the court. Is the background of any other justice similar? Or does any other justice have a similar view of business?

  5. Nate Oman says:

    I actually find it troubling that there is so little evidence of experience or interest in business by the current members of the court, including those who are on the conservative wing of the court. I am not talking about being pro- or anti- business. I am talking about having interest in or or understanding of business.

  6. Bryan Gividen says:

    I agree with the sentiment, but if we expand that to other fields, wouldn’t it be impossible to be a Supreme Court justice? Couldn’t the the Court’s lack of understanding of environmental science, lack of military experience, or lack of NPO interest all be areas that would be cause for concern? It seems like we would have to either appoint justices based on “expertise area” or just be content that our justices won’t have an interest or understanding of all the topics before them.

    Am I understanding the complaint correctly?