February 12, 2011

Prosser allies admit court is "pro-business"

As the Brew City Brawler perceptively discovers today.

When one considers that most of the decisions in the report the Brawler is discussing reduce to "Injured Plaintiff v. Business," the Wisconsin Civil Justice Council's advocacy is troubling, as it suggests its endorsement of Justice Prosser is based on an assumption that he has already prejudged future cases in favor of the latter adversaries.

In fact the first person to reject it should be Justice Prosser.

It's also notable that the very first decisions the WCJC cites, 2009's Horst v. Deere and its counterpart Godoy v. E.I. DuPont, contain writings either authored or joined by Justice Prosser openly lobbying for a sea change to long-accepted Wisconsin products liability law.

And they aren't making recommendations to the State legislature, as is occasionally the case with the court's opinions. Rather, the so-called conservative justices want the court itself to effectuate a radical alteration in the law despite — as Justice Crooks smartly notes — neither party to either case urging the adoption of the novel doctrine which — not coincidentally — appears in a treatise prepared by conservative academics,* the Restatement (Third) of Torts.

In different circumstances, this is what political conservatives denounce as "judicial fiat." Not that anybody should expect philosophical consistency from them. They're simply opportunists.

Who knows why they just can't admit that; it's as plain as can be.

* Principally Aaron Twerski, a distinguished Marquette Law alumnus.

4 comments:

Brett said...

I think you've stumbled on the counterpart to "liberal judicial activism": "conservative judicial opportunism," defn - the unbridled use of judicial power to benefit corporate interests without regard to judicial precedent and without regard to the case in controversey pending.

John Foust said...

August 9 or 11? Talk about your death panels.

David Ziemer said...

justices do that all the time. consider prosser and gableman's frequent comments that it should be easier to sue government entities, and the ministerial/discretionary distinction has no basis in the statute. or is that ok, because it's pro-plaintiff?

illusory tenant said...

I agree they do it all the time, which is one of the reasons why popular conceptions of liberal vs. conservative justices are so misguided (as you well know). But it's not me that's saying any judge is pro-plaintiff or pro-business; it's these outfits that are exploiting those misconceptions for fun and profit.