Lauren and Keith, I agree with most of what you're saying. I didn't mean to imply that we can identify "underdogs" without respect to the facts of particular cases. (On the other hand, I have a hard time accepting the idea that it's all that difficult to tell who the underdog is most of the time, at least in the cases we ought to be paying attention to.) How best to go about advancing the client's interests is, for me, the tougher question.

Definitely. I actually saw this point raised just recently in a slightly different context. It came up in an ACS issue brief on the recent subversion by the U.S. Supreme Court of statutes originally intended to protect consumers by protecting their right to challenge insurance companies and pension plan administrators in court. The authors suggest, as one response, drafting legislative text with an explicit view toward challenging future misconstrual and subversion by judges.

I've attached the brief to this page for anyone interested in these issues. It's a pretty quick read.

-- MichaelHolloway - 16 Feb 2009

• Lazarus20Tobin20Issue20Brief_0.pdf: Lazarus & Tobin, "The Supreme Court's Two-Front War on the Safety Net"