Questions for Elena Kagan on "Private" Law

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Written by Katie Porter

Legal scholars have queued up several lists of good questions for Supreme Court nominee Elena Kagan. Most have focused on her views on  “hot” topics, such as national security, racial diversity, how she might be influenced by Justice Thurgood Marshall. But what about Elena Kagan’s view on securities law, bankruptcy law, contract law, and other areas that are traditionally-defined as being “private law?” What do we know about her views here? More to the point, why is nobody even asking her about these subjects?

My research focuses on bankruptcy, an exclusive area of federal law, where appeals to the Supreme Court are not uncommon. Dramatic revisions were enacted in 2005 to the bankruptcy law, and many of the key issues are now before the Court, with more expected to come. Under Elena Kagan, the Office of the Solicitor General has taken positions in these appeals. Will anyone pry into her understanding of the bankruptcy clause of the Constitution and canons of interpretation for an integrated Code like bankruptcy? I doubt it. Yet, these decisions will affect the quality of justice for hundreds of thousands of families who file bankruptcy every year. For an example, consider the position of the government in the recently decided Lanning case.

Similarly, what is the depth of Elena Kagan’s knowledge of tax law, securities law, consumer protection law, and a myriad of other business and commercial statutes? How does she see the role of the Court or of the law being different–if at all–when the parties are two private litigants, rather than a private party v. the government? I don’t mean to suggest that we should expect Supreme Court nominees to be experts in every area of the law; that would be unrealistic.  But I think our consideration of a candidate’s qualifications and view should include a discussion of topics beyond the Constitution, recognizing that the Supreme Court dramatically shapes public life through its adjudication of private disputes and interpretation of federal statutes far from the hot-button Supreme Court jurisprudence on Bill of Rights’ issues.