On February 26—just two weeks after Justice Antonin Scalia’s untimely death—Dow Chemical agreed to settle the In re Urethanes Class Action litigation for $835 million. Dow had lost the antitrust trial in that case in 2013 and faced a $1 billion dollar judgment, which had been affirmed by the U.S. Court of Appeals for the Tenth Circuit. Dow had strong arguments for reversal at the U.S. Supreme Court based on potential extensions of Wal-Mart v. Dukes and Comcast v. Behrend—two 5-4 decisions authored by Scalia. But when Scalia died, Dow reassessed its position and concluded that “[g]rowing political uncertainties due to recent events within the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class action suits have changed Dow’s risk assessment of the situation.” In other words, Dow realized that without Scalia it had practically no chance of prevailing.
Legal scholars and casual observers alike will remember Scalia for his originalist judicial philosophy, his inimitable writing, his fiery speeches and his questions at oral argument. The cases that will inform his legacy will likely be his constitutional cases, particularly his opinions, concurrences and dissents on issues such as gun rights (Heller), gay rights (Lawrence), gay marriage (Obergefell), campaign finance (Citizens United) and abortion (Casey). His absence will likely alter the landscape of constitutional law for a generation.
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