JUDICIAL JEOPARDY: When Business Collides with the Courts

A serious civics lesson that casts a cold eye on the legislative and executive as well as judicial branches of government. The wise and dryly witty text is of interest not only to corporate executives routinely exposed to litigation risks but also for anyone who has ever wondered how (or whether) the system works. Currently a justice on West Virginia's Supreme Court of Appeals, Neely dismisses as ""pure fantasy"" the notion that judges have no agendas and attributes their ability to enforce personal priorities to the nature of the bicameral parliamentary system. Because the provisions of both constitutions and statutes tend to be (often deliberately) vague, Neely argues, ""it has been the courts that have poured content into. . .law."" In the event, judicial decisions may have profound and precedential consequences for enterprises and/or individuals not parties to the original action. By way of example, he cites the Thor Power Tool case, which completely changed the rules on how worthless inventory may be written off for tax purposes. Among other remedies, Neely recommends that business settle its legal quarrels at an early stage. In addition, commerce and industry should devote some soft-sell attention to the judiciary, e.g., by briefing members on ""legislative facts"" in the course of programs ostensibly staged by a bar association or academic institution. Such efforts, he submits, can pay far greater dividends than legislative lobbying, which at best yields no-action returns. The verdict: an engrossing like-it-is rundown on political realities that goes a long way toward explaining just why and how activist judges seem to make more real law than the legislative bodies whose handiwork they interpret.