"Kagan Sided With Investors in Two Notable Securities Cases"

[impik]

WASHINGTON—The federal government has opposed business interests in two closely watched securities cases during Elena Kagan's time as solicitor general, although her brief tenure has overlapped with just a handful of notable business cases.
With Ms. Kagan as solicitor general, the Obama administration has taken a friendlier approach to investor lawsuits. Ms. Kagan's office filed a legal brief supporting investors in a case that examined when shareholders could sue mutual-fund managers for allegedly charging excessive fees. Ms. Kagan argued that a lower-court ruling in the case did not provide enough of a check on potentially excessive fees.

In another case, Ms. Kagan's office argued that shareholders of Merck & Co. Inc. didn't wait too long to file lawsuits alleging the drug maker misrepresented the safety of painkiller drug Vioxx.

The Supreme Court, which decided both cases this spring, unanimously agreed with Ms. Kagan's position each time.

In a third investor case pending at the high court, Ms. Kagan's office sided with the business position, arguing that foreign investors should not be allowed to bring a securities fraud lawsuit against National Australia Bank Ltd., a foreign company, in U.S. courts. That case hasn't yet been decided.



http://online.wsj.com/article/SB10001424052748703880304575236280410908638.html?mod=WSJ_hpp_MIDDLENexttoWhatsNewsTop

[AndyA]

1. And then there's Citizens United.

Good choice, Barack.

She'll restore some balance to the SCOTUS. :eyes:

[NJmaverick]

2. Yes there is Citizens United that's the case she FOUGHT AGAINST

unlike her number one critic Greenwald who actually applauded the Republican justices hijacking our governmment

[vaberella]

3. Really? Huh...n/t

[NJmaverick]

4. Yup, it pays to know the FACTS as truth is power

[vaberella]

5. I agree. I'm collecting info on her as we speak. n/t

[NJmaverick]

6. That's great to hear. She is a terrific pick and I am sure you are going to

be happy with what you find. Remember she is someone that both President Clinton and President Obama both think very highly of.

[AndyA]

12. Didn't turn out so well, did it?

It was her job to fight it. That doesn't mean she agreed with what she was doing. And that is of greater importance with her nomination.

http://www.huffingtonpost.com/marvin-ammori/does-elena-kagan-disagree_b_569351.html

Kagan, in arguing the Citizens United case, abandoned the actual rationale of the Court’s 1990 ruling in Austin v. Michigan Chamber of Commerce and thus (in the words of the NYT article) “threw overboard the interest mentioned by President Obama, that the government may limit corporate speech to make sure it does not distort the marketplace of political ideas.”

In one of Dean Kagan's very few law review articles, she describes the legal "rule" in agreement with Citizens United's conservative majority, not Stevens' dissent, and says Austin can't be distinguished. She does something similar for phone and cable companies (as I'll explain), again siding with the largest corporations (and Justices Antonin Scalia and Clarence Thomas) over Stevens.

In the common language of law review articles, the conclusion can almost be implied: these exceptions should be overruled, as they are unjustified exceptions in the law.

[NJmaverick]

13. With Republican Supreme Court Justices that don't care about our Constitution

The ONLY thing she could do was put up a good fight.

[FrenchieCat]

20. 5-4 decision you want to blame on Kagan?

Wow! That's convenient!

[Jeff In Milwaukee]

7. The grain of salt...

We have to remember that Ms. Kagan has never been a judge, so it's extremely difficult to tell what her judicial philosophy might be. In both cases cited here, she was working as Solicitor General of the United States, and her efforts for (or against) any particular issue are going to be highly reflective of the administration for which she is working.

I don't mean to dismiss the point made in the OP. I like Kagan and if Bill Clinton and Barack Obama both know her well and think highly of her, then I'm inclined to trust their judgment. But that being said, one should exercise caution in trying to determine her judicial temperament based on work that she did on behalf of others. If a criminal defense attorney defends a murderer, it doesn't mean that she's "pro-homicide."

[vaberella]

8. I think what also needs to be kept in mind...

that even past input on cases is very subjective. What I mean to say is that until they are seated and presiding over cases there's no way to know which way a prospective Justice leans. Most assumed Justice Stevens would have been conservative. He was put into office by a Republican. He hasn't come out and said specifically that he is a Republican but many have said that he leans that way and he's 100% WASP, but Stevens is a known Liberal judge but his personal background says otherwise.

The point being that for or against needs to be taken with a grain of salt, however what I've read so far actually makes a very interesting candidate. Plus she's also known to be pro-Gay rights and women's rights. And I'm extremely supportive of both.

[Jeff In Milwaukee]

10. The historical tendency has been for justices to move to the left...

I really don't know of any justices who started out left or center and who then moved right over the course of their careers. Plenty of cases where the opposite has happened. Maybe it's because those justices were not as far to the right as people had originally thought, or maybe the justices simply move left with the country. Loving v. Virgina (abolishing anti-miscegination laws) was handed down by the Supreme Court in my lifetime -- so maybe as we become more open-minded as a society, the Supreme Court reflects that.

[NJmaverick]

14. I always though ti was because the left has the superior position

and if you force people to listen to the right's and the left's factual arguments day in and day out most intelligent and reasonable people can't help but be persuaded by the left's compelling case and the right's lack there of.

[NJmaverick]

9. Jeff I look at it this way. She took a very strong stand against DADT

while at Harvard. That certainly tells me she is someone that cares about civil rights for all. I also understand that on her own she is strong pro choice. So while we don't have a long judicial record to look at (not that this is a sure indicator as they are working under the SC when making their ruling) the endorsement of two men I highly respect as well as many other people and groups along with these key indicators look pretty good to me.

[Jeff In Milwaukee]

11. I completely agree....

At the risk of flame-baiting, I've only heard from one prominent individual who has dissed her selection. She gets rave reviews from everybody who has ever worked with her. And at the risk of sounding ridiculous, I still look to profoundly-flawed Elliot Spitzer for opinions about public policy (probably not the best guy to go to for marital advice). Spitzer has given her a strong endorsement as well. I think she's an very good choice.

[supernova]

17. I agree about Spitzer

it seems that even with his messy personal life, he is committed to having our public institutions do the right thing.

[Arkana]

21. You know there's no way she became the nominee without someone

on the vetting team asking her which side she would have come down on in Citizens United.

I mean come on. It's like the Roe question--Presidents deny the existence of "litmus tests" but you know damn right well the questions were asked.

[unblock]

15. sounds good and liberal to me. should we want her to side with management instead?

perhaps some here might think that whenever business comes up, the government should ideally side with consumers or workers, but the cases here are a battle between investors and management.

given that choice, would we prefer she come down on the side of letting management charge investors excessive fees? or letting management deceive their shareholders (as well as the rest of the public)?


there are many unknowns with many judicial nominees, this one more so than most. but these two cases look good to me.

[supernova]

16. As SG, she doesn't get to argue

her personal position, but the position the gov't wants (i.e. the present admin) .

So I don't think it's fair to say that these are her personal positions. Because she hasn't been a judge, we don't know what she thinks about a lot of this stuff. It does worry me, and thanks for asking.

[Cha]

18. Ohhh, the rw hacks won't like that..

and the other hacks will ignore it.

[Cha]

19. But, "Obama's appeasing the rw"..

:cry: