Elena Kagan on Corporations
2009: Argued before Supreme Court favoring Chrysler bailout
[Richard Mourdock, the Treasurer of Indiana,] realized that Indiana's pension funds owned some Chrysler bonds, and reasoned that this might give him standing in court to challenge the [automobile bailout bill. On May 29 2009, New York's federal
bankruptcy court rejected the motion. Mourdock appealed. On June 5, the appeals court also affirmed the sale [so it went to the Supreme Court].
Solicitor General Elena Kagan responded for the administration, reminding the Supreme Court and the country
of what was at stake. "The liquidation of Chrysler would have very severe effects on the American and Canadian economies. More than 38,000 Chrysler employees would lose their jobs; 23 manufacturing facilities and 20 parts depots will be shuttered; more
than 3,000 Chrysler dealers would suffer significant harm to their businesses; and billions of dollars in health and pension benefits would be wiped out." The Supreme Court denied the stay. The sale could go forward--as it did, the next day.
Source: Shortest Way Home, by Pete Buttigieg, p. 86-7
, Feb 12, 2019
Disallow monopolies from disadvantaging small business
When the owner of a small restaurant, Italian Colors, located in Oakland, California, accused American Express of abusing its monopoly power by imposing unreasonable rates on the restaurant,
American Express responded that such a claim was prohibited by the mandatory arbitration clause in the contract Italian Colors had signed with it. The case went to the Supreme Court, and in 2013 a majority of the court
(including all of the court's Republican appointees) agreed with American Express. But as Justice Elena Kagan argued in dissent, the court's decision puts small businesses in an impossible bind and
gives large monopolists an easy way out. "The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse."
Source: Saving Capitalism, by Robert Reich, p. 55-6
, May 3, 2016
Ok to sue for corporate direct OR indirect negligence.
Justice Kagan joined the Court's decision on CSX TRANSPORTATION v. MCBRIDE on Jun 23, 2011:
A railroad employee complained that the configuration of locomotives he had been assigned was unsafe because it required excessive use of an independent handbrake. Told to run the configuration as it was, the engineer after 10 hours of work injured his hand while using the handbrake. He never recovered full use of his hand and sued the railroad under the Federal Employers' Liability Act (FELA).
HELD: Proximate cause not needed in railroad employee injury suitDelivered by Ginsburg; joined by Breyer, Sotomayor, Kagan & ThomasRecognizing the hazards of railroading, Congress enacted FELA in 1910. It allowed injured employees to recover "for injury resulting from negligence" of the railroad. By using this language, Congress intended to substitute for common law "proximate cause" a standard that any negligence by the railroad, however slight, that caused injury to an employee would lead to railroad liability for the injury.
Congress dispensed with examination of whether the railroad's negligence was the "direct" or "probable" cause of the injury. If any injury is forseeable, and the railroad negligent in preventing it, FELA allowed damages even if the particular injury is not forseeable. FELA's wording, Supreme Court precedent, and 50 years of Court of Appeals decisions following this precedent lead to this conclusion.
DISSENT: Congress did not disavow proximate cause in worker RR suitsFiled by Roberts; joined by Scalia, Kennedy, and AlitoProximate cause has long been a requirement in tort law. When enacting FELA, Congress expressly disavowed four other common law standards of tort law; The Court therefore has no basis to find that Congress intended to do away with proximate cause in FELA cases by implication. The Court misinterprets the Court's precedent and provides a standard for FELA cases lacking in guidance to courts and allowing unpredictable recoveries.
Source: Supreme Court case 11-MCBRIDE argued on Mar 28, 2011
Page last updated: May 06, 2021