This fall’s Wall Street gyrations have been so extreme that they’ve tended to overshadow the previous seven-and-a-half years of President George W. Bush’s term of office. And while it’s true that litigation is widely expected to boom in the wake of the financial meltdown, we thought it was also important to look back at the Bush policies that have already had a profound effect on litigation in this country-and, at the same time, to look ahead at litigation-related issues that the next president will have to confront.
The administration’s most obvious influence has been at the U.S. Supreme Court, which many observers believe is now the Court that conservatives have long dreamed of. But Legal Times’s Tony Mauro questions that conventional wisdom in “The Right Stuff.” Mauro explains how the Roberts Court came to be, and takes a close look at its record-which shows less of a conservative tilt than you might think. Among the most important cases that haven’t gone the administration’s way, of course, have been those involving issues of executive power and the detainees at Guantánamo Bay. We asked essayists on the left and the right to assess the showdown between the president and the federal courts on detainee rights. In “Courting Failure,” Georgetown Law Center professor Neal Kumar Katyal contends that Bush was doomed to be reined in by the judicial branch. Baker & Hostetler partners David B. Rivkin, Jr., and Lee A. Casey take the opposite view in “Within His Rights,” arguing that it has been the courts that have overreached their authority. Meanwhile, in “Black Hole,” reporter Daphne Eviatar looks at the new habeas corpus battleground-prisons in Afghanistan-and asks why Am Law 200 firms haven’t begun representing detainees held there.
In the arena of civil litigation, no Bush administration strategy has had more of an impact than federal preemption of state-law tort claims against pharmaceutical companies. Contributing writer Tamara Loomis chronicles the development of the Food and Drug Administration’s preemption argument from occasional amicus briefs to codified policy. And when the Supreme Court hears this term’s landmark case of Wyeth v. Levine, Loomis writes in “Preemptive Strike,” the Court is poised to end pharmaceutical litigation as we know it. We also look at the civil litigation fallout from decisions made by other Bush administration agencies-from the Federal Reserve’s truth-in-lending laws to the FCC’s zero-tolerance indecency policy-in the opening section of the magazine, “Developments.”
On the criminal side, reporter David Bario examines the administration’s record in prosecuting alleged terrorists in “By Any Means Necessary.” After September 11 the Justice Department developed an aggressive-and controversial-approach to terror prosecution. Bario concludes that it has been a success, but also finds evidence that the administration’s new priority is collecting intelligence, not prosecuting inchoate crimes.
Finally, we look ahead. In “The Futures Exchange,” reporter Rachel Breitman presents predictions from leading litigators about looming issues in their fields. From antitrust to white-collar crime, litigators told Breitman that the next administration will have its hands full.