Barron’s - USA (2020-09-28)

(Antfer) #1

14 BARRON’S September 28, 2020


countability Center, a liberal think tank.


Even if another conservative only ce-


ments rulings with a larger majority, the


court may be more inclined to take up


cases advocated by the Chamber and other


business-friendly groups, says Adam


Feldman, author of the Empirical Scotus


blog. “If the middle gets pushed to the


right, the court may structure opinions


that don’t cater as much to left-leaning


causes,” he says.


Moreover, another conservative may be


more inclined to overrule precedents than


Roberts, who tends to favor limited rul-


ings. “Opinions will look different with a


justice who’s more business-friendly,”


Saharsky says.


W


hether that tips the scales toward


businesses remains to be seen.


And cases in this term could break


along uneven ideological lines. The


Ford case, for instance, hinges on whether a


company can be sued by consumers in a


state court if the firm doesn’t do business in


the state. Much of the business community


backs Ford, arguing no, andGinsburg may


have been sympathetic to that view: She


wrote a unanimous opinion in 2014 that


limited the ability of plaintiffs to cherry-pick


a jurisdiction (a practice known as forum


shopping). “You could say that was a busi-


ness-friendly decision, or a decision where


she insisted on fairness for all,” says Harry


Sandwick, a partner at Patterson Belknap


and a former federal prosecutor.


Perhaps the highest-stakes case is


Google versus Oracle. In a nutshell, Google


appropriated lines of software code from


Oracle’s Java operating system to develop


Android. Oracle says Google infringed on


its copyrights, while Google says the por-


tions of the code that it copied weren’t


copyrightable (arguing it was part of a


method or system) and that its use was


lawful under “fair use” principles. Google


won in lower courts on both issues, while


the appellate court disagreed. Tech compa-


nies and advocacy groups have weighed in


on both sides, arguing that a ruling could


protect software innovation (if Google


wins) or intellectual-property rights (if


Oracle prevails).


The court plans to hear oral arguments


on Oct. 7. Ginsburg was a strong defender of


copyrights, and her replacement may be less


sympathetic to Oracle (if the case is re-heard


with a full bench). The court may also avoid


the copyright questions, ruling on the nar-


rower issue of whether there’s a right to a


jury trial in fair-use cases, says Tyler Ochoa,


a law professor at Santa Clara University.


“It’s a very difficult case to call,” he says.


The court’s shiftingpower dynamics


make it even more of a toss-up.B


HOW DO YOU MANAGE


RISK WHEN THE WORLD IS


UPSIDE DOWN?


We can't control what's next, but we can help navigate it. CME Group provides 24-hour


access to trading opportunities in every investable asset class, allowing market participants


worldwide to manage risk and capture opportunities. For every economic twist and turn,


when the new normal is anything but... CME Group.


VISIT CMEGROUP.COM/ACTION


Derivatives are not suitable for all investors and involve the risk of losing more than the amount originally deposited and any profit you might have made. This
communication is not a recommendation or offer to buy, sell or retain any specific investment or service. Copyright © 2020 CME Group Inc. All rights reserved.
Free download pdf