People Think That Hank Greenberg Could Win The Takings Case Against The Government, But Is It The Day In Court Phenomenon?

Greenberg is suing the government for treating his firm unconstitutionally differently than other firms bailed out during the financial crisis – he argues, correctly, that AIG got killed, and was used as a vehicle to pay AIG’s struggling counterparties out at 100 cents on the dollar.  Whether that’s a taking, given 1) that the government couldn’t possibly treat everyone identically during the crisis, and 2) that AIG would have failed without the government’s intervention, making the measure of damages difficult, is why many people have found the case to be unlikely.  

So now that Greenberg is getting some good rulings, and sympathetic questions from the bench, the received wisdom seems to be that he is doing surprisingly well (though if he wins, an appeal is certain).  I haven’t read every transcript, but I do wonder whether the “day in court” effect is at work here.  In appellate cases, I think that oral argument is an excellent predictor of the outcome.  But at trial, with appeal likely, savvy judges often let the side that is going to lose put on plenty of evidence, and do well with motions, so that there can be no allegation of bias, and to minimize things to complain about on appeal.  They get, in other words, their day in court.  I’m not sure if that’s what’s going on there, but I know that when I was a litigator, I wouldn’t want the court to treat long-shot adversaries with contempt, but rather with tolerance.