At the Federalist Society Blog, Brian Fitzpatrick (Vanderbilt): Textualist-Originalist Opportunities in the Plaintiffs’ Bar. From the introduction:
Last week, I spoke on a panel with other conservatives at the American Antitrust Institute, an organization that supports private enforcement of the antitrust laws—i.e., the antitrust plaintiffs’ bar. The group brought me there to talk about my book, The Conservative Case for Class Actions, but there was also interest in learning about how to make textualist and originalist arguments to a judiciary now stocked with Federalist Society members. On that, I told the group two things.
First, I think there is now more opportunity than ever before to interest Federalist Society members in becoming plaintiffs’ lawyers. As big corporate defense law firms push conservatives out the door, my students who are in the Federalist Society have become less enamored with working there. They are open to working at plaintiffs’ firms if those firms will be more tolerant of their civic engagements and pro bono work. There is now a real opportunity for plaintiffs’ firms to attract talented lawyers who really believe in and who have thought seriously about textualism and originalism; in my view, these are the lawyers who will make the most effective textualist-originalist arguments for their clients.
Second, I think the judiciary really is more receptive to these arguments now than it ever has been. There was skepticism in the room that even judges who came up through the Federalist Society follow the methods when the methods conflict with their policy preferences. But I actually think the opposite is true: not only are our judges true believers, but many of them are eager to show that the methods are politically neutral; they are more than happy to reach outcomes that don’t fall on the conservative side. Moreover, what the “conservative side” is is itself in flux. I am not sure the U.S. Chamber of Commerce has ever been less popular in the Republican Party, and, dare I say, the Federalist Society, in my entire lifetime. Thus, the plaintiffs’ bar can go into some fights with a double barrel weapon.
I shared with the group some recent examples. …
Agreed on all of this. Just as originalism done right is not necessarily Republican over Democrat, it's not necessarily defense over plaintiff on the civil side (or prosecution over defense on the criminal side).
Posted at 6:29 AM