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.