The Past Speaks

In the last couple of weeks, the US legal blogosphere has been filled with discussion about whether the current Supreme Court is more or less pro-business than its predecessors. (See here, here, and here). (The current Chief Justice is a Republican appointee, as are six of the other nine justices). Although “culture-wars” court cases such as DOMA tend to get the most media attention, the cases dealing with economic issues are arguably much more important in shaping everyday life.

The debate about the pro-business bias of SCOTUS has been kicked off by a recent academic paper that crunches the numbers to track the Court’s fluctuating attitude toward Big Business.

Lee Epstein, William M. Landes, and Richard A. Posner. “Volume 97 Lead Piece: How Business Fares in the Supreme Court.” Minn. L. Rev. 97 (2013): 1431-1507.

This paper was based on the “Business Litigant Dataset, [which] consists of the 1759 cases that  were orally argued in the Supreme Court’s 1946 through 2011.”  They also used the Business versus Business database, which consists of  255 cases orally argued in front of SCOTUS in the same period.

The authors looked at all cases involving one or more businesses and coded the litigants. They examined the outcome of cases in which individuals fought corporations to look for patterns in the Court’s decision to “side with the little guy.” For lawsuits involving two corporations, they looked at the size of the corporations to see whether the Court favoured Big Business over Small(er) Business.  After analysing cases back to 1946, they found that the Roberts Court has been the most business-friendly and that Roberts and colleague Samuel Alito the two most business-friendly justices. (Roberts’s father was a corporate executive).

My question for my readers is: has anybody done a similar analysis of the decisions of either the Supreme Court of Canada or the Judicial Committee of the Privy Council?

I’m a business historian so this is obviously something I should know about. However, I’m not a legal historian and am therefore unfamiliar with the secondary literature. [I’ve read Peter George and Philip Sworden. “The Courts and the Development of Trade in Upper Canada, 1830-1860.” The Business History Review (1986): 258-280 but don’t know of other sources]. I’d like to draw on the expertise of the readers of the Canadian legal history blog here.