We Shouldn't Have To Choose Between Disney Whipping DeSantis And A Dickensian Hellscape

(Mickey's Christmas Carol -- 1983)

Watching Ron DeSantis get repeatedly and thoroughly run through the ringer by Disney lawyers is a source of constant lawyerly entertainment. The lawsuit that Disney dropped on Florida mere hours after DeSantis had his cronies throw themselves in breach of legally executed contracts is just the latest humiliation the prospective presidential candidate heaped upon himself for Donald Trump to ridicule. He's promising to counter-sue, ensuring even more belly laughs from the peanut gallery.

But Mark Joseph Stern had to go all Scrooge McDuck on our parade. And not the fun Scrooge that takes us on adventures between dips in the Money Bin, but the mean one who talks about Dickensian misery. In a new Slate piece, Stern claims that he cannot root for Disney to prevail in its suit because he fears the repercussions of unbridled Contracts Clause jurisprudence:

The contracts clause became a tool of mischief during the Lochner era, the period from the 1890s to the 1930s when the Supreme Court routinely invalidated health, safety, and economic regulations. The clause fit neatly into the court's conception of a constitutional "liberty of contract" that sharply limited state oversight of the marketplace. During this period, for instance, SCOTUS repeatedly used the contracts clause to preserve private monopolies over the water supply, preventing local governments from constructing their own water works. It also struck down a Kansas law, enacted during a financial panic, that let mortgage-holders stay in their homes for several months after foreclosure.

Which is entirely fair. Given the Court's genuine excitement for tearing down the regulatory state -- it took up an assault on Chevron today -- and ushering in Lochner II: Child Labor Boogaloo, it might well be the direction a disingenuous Supreme Court lets it head.

But just because a snip of constitutional text can be turned toward dismal ends doesn't mean it's not valid some of the time. Whatever mischief a judge could contrive from state regulations arguably impinging on a contract, the case of a government actor trying to unwind contractual obligations it entered itself falls within the acceptable purview of the language.

And at that point, there's no way that O'Melveny and WilmerHale could responsibly not forward the argument. Their obligation is to zealously represent the client against Florida, not the public at large against future bad faith actors. Neither firm can leave the path of least resistance unargued because forfeiting a claim out of the gate just unnecessarily prejudices the client, no matter how sound the other available legal theories.

Because bad faith actors are going to bad faith act. If there's any exploitable life in taking the Contracts Clause from this case to blowing up city water deals, the Federalist Society will find it in due course. Nothing Disney does to protect its rights will change that gathering storm if it's on the horizon.

And robbing litigants of this strategy may well prove worse in the current climate. While embarrassing for DeSantis so far, his tussle with Disney will only bring out the worst impulses in petty tyrants across the country. Republican governors with GOP supermajorities in the state legislature are looking for a model to flex their economic muscle and retaliate against every business with a DEI program or ESG commitments to its investors.

Unlike Disney, some of these companies aren't going to have the luxury of a case rooted in free speech like Disney mildly critiquing the Don't Say Gay law. Instead, the company will be staring down the cancelation of millions in deals because it has a health insurance policy that covers contraceptives or something. Throw in a slightly less buffoonish adversary willing to keep its mouth shut over whether or not the move is explicitly retaliatory and the next business out there may need the Contracts Clause to protect any of its rights.

We can all agree that Contracts Clause arguments amount, to some extent, to playing with fire. But we shouldn't have to deal with a world where bodies willing to expel members for opposing gun violence or censure a legislator for being trans have the power to hamstring commerce to score points with the baying mob of disaffected MAGA heads. We shouldn't have to choose between a robber baron dystopia and throwing contractual relations to the whims of an incel message board -- there's a way to read this particular text to prevent both. But we're only going to tame this fire if we're not afraid to approach it.

Why I Can't Root for Disney's Lawsuit Against Ron DeSantis [Slate]

Earlier: Disney Litigators Take Their Turn Beating The Hell Out Of Ron DeSantis With New Federal Lawsuit
Disney's Lawyers Are Better Than Ron DeSantis's Lawyers
Ron DeSantis Sticks It To Woke Disney With Hilariously Unconstitutional Law Banning Contracts

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you're interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.