By Ann W. Parks

Former Supreme Court Justice Sandra Day O'Connor speaks at the third annual conference of the Sandra Day O'Connor Project on the State of the Judiciary.

In the midst of what former U.S. Federal Reserve Chairman Alan Greenspan described as “the type of wrenching financial crisis that comes along only once in a century,” the relationship between government and business is on everyone’s minds. Yet the judges, lawyers, corporate leaders, journalists and other experts who gathered at Georgetown Law on October 2 were focused not on stock market losses and congressional bailout plans but the link between corporations and another branch of government — the judiciary.

Greenspan, former Supreme Court Justice Sandra Day O’Connor and Justice Stephen Breyer were among the speakers at “Our Courts and Corporate Citizenship,” the third annual conference of the Sandra Day O’Connor Project on the State of the Judiciary. The project was established in 2006 to address issues that threaten our nation’s tradition of a fair and impartial judiciary — million-dollar judicial election races, negative campaign advertising, unreasonably low judicial salaries and more.

This year’s conference, which was also attended by Justice David Souter, continued to address these challenges while focusing on the role that corporations play in the court system — both as litigants and as citizens with a decided stake in an effective and independent judicial process. The day opened with remarks from Justice O’Connor — who, in the words of Law Center Dean Alex Aleinikoff, has taken a leading role in educating Americans about civic participation and the importance of citizenship.

“Corporations stand to lose large amounts if judicial independence wavers,” O’Connor said, noting that businesses view the current court situation as a failure in some respects. Runaway juries, unpredictable outcomes, litigation delay, expense and possible lack of judicial expertise have caused corporations to look outside the court system to settle their disputes —“and there’s not total satisfaction with alternative dispute resolution, either,” she said.

O’Connor further noted that there were times in the country’s history when justice was actually for sale. A nineteenth-century Texas judge named Roy Bean, she said, traded both liquor and justice from his courtroom (in that order).

“While we’ve come a long way since those days, I worry that we are inching backwards as money creeps its way back into the judicial races and into our courts,” O’Connor said. “Once you hang the for sale sign on the courthouse door, you can’t predict who the buyer will be.”

 

That remarkable document

Cameras from national and international news media lined Hart Auditorium as keynote speaker Greenspan lent his thoughts on markets and the judiciary — in what was obviously a dramatic week for Washington and Wall Street. Georgetown University President John J. DeGioia introduced Greenspan, who served as chair of the Federal Reserve from 1987 to 2006 and presided over the largest economic expansion in U.S. history.

“Eventually, the market freeze will thaw as frightened investors take tentative steps towards reengagement with risk,” Greenspan said. “Broken market ties among banks, pension and hedge funds and all types of nonfinancial businesses will become reestablished and our complex economy that has the capacity to produce a fifth of the world’s goods and services will reemerge.”

Greenspan credited the Constitution with providing the economic prosperity that has given Americans the highest standard of living in the world over the course of the last century. The rule of law — particularly laws relating to private ownership — are critical to economic growth, he said, as people need to be able to “own and dispose of property without the threat of arbitrary confiscation by the state, or mobs in the street.” And yet the rule of law must be perceived as fair if competitive markets are to thrive. Reputation and trust in the word of others play important roles as well.

“Trust will eventually reemerge as investors dip hesitantly back into the marketplace,” Greenspan said. “From that point, history tells us, financial and economic revival sets in … it always has, in this society governed by that remarkable document we call the Constitution of the United States.”

In another of the day’s highlights, Justice Stephen Breyer spoke of the importance of public confidence in the court system — and his recent efforts to explain the concept of judicial independence to six judges from Ghana.

“It doesn’t mean looking at a decision with a blank mind,” he said. “Being independent means you are approaching it with a mind open to persuasion.”

 

Former U.S. Federal Reserve Chair Alan Greenspan.

‘One-disk’ countries

Greenspan also noted that property is becoming increasingly intellectual, a topic explored during a morning panel that included Bradford L. Smith, senior vice president and general counsel of Microsoft Corporation, and Kenneth Frazier, executive vice president of Merck & Co. In a discussion moderated by Georgetown Law Professor Viet Dinh, Smith and Frazier spoke of some of the difficulties of doing business in countries with differing or rudimentary legal systems.

Smith noted that two decades ago, if his company would ship a single disk of software to a country with no copyright laws, that one disk would work its way around the country — with no additional sales by Microsoft. Today, the company files approximately 4100 cases in just under 70 countries in a typical year.

“It gives us a very good window on the world, a perspective on how the judicial system is working,” Smith said. “Unfortunately, in many parts of the world, it doesn’t work nearly as well as one would hope.”

A panel with Delaware Supreme Court Justice Randy J. Holland explored the corporate trend to get out of the courts and into alternative dispute resolution systems — due to the costs, delays and uncertainties inherent in business litigation. U.S. District Court Judge D. Brock Hornby and Bernard W. Nussbaum, a partner at Wachtell, Lipton, Rosen & Katz, examined the startling pay disparities of the nation’s judges. And in the afternoon, a panel including retired Wisconsin Supreme Court Justice Louis Butler and former Solicitor General Ted Olson looked at how corporations can help prevent dollar-driven judicial election races. Mediators included Adam Liptak and Linda Greenhouse of the New York Times; Fox News Correspondent Catherine Herridge; and Meryl J. Chertoff, director of the Sandra Day O’Connor Project on the State of the Judiciary, who was instrumental in planning the October 2 conference.

At the end of the day, O’Connor called for a task force to consider how courts can serve corporate and business interests better; how corporations and businesses can help improve the tone of judicial campaigns judge recusal rules; and to implement other recommendations.

“Some good can come out of these conferences … when we started this, the consensus was, we need more education,” she said. “We’re really following up on that, and I think you will see the results of that.”

 

A webcast of the event is available at http://www.law.georgetown.edu/webcast/eventDetail.cfm?eventID=620