The importance of the case being heard by the US Supreme Court, concerning Marc Kasky's suit against Nike, was discussed in detail the section 'Just do it... out of Court.' At the end of June, the Court issued its judgement, effectively changing its mind that it was appropriate to hear the case at all. A sensible decision, some may consider, given that Nike was seeking that the Supreme Court stop a case from even being heard. The New York Times reported that the case "became the focus of an intense debate, on the Internet, at the court and elsewhere, over the role of multinational corporations, the effects of globalization and the constitutional contours of commercial speech." 38 Justice Stevens, argued that issuing an opinion at this time would result in "the premature adjudication of novel constitutional questions" that would "apply with special force to this case"; adding that "this case presents novel First Amendment questions because the speech at issue represents a blending of commercial speech, noncommercial speech and debate on an issue of public importance." 39 It seems that when accepting to hear the case earlier in the year, the Justices underestimated the complexities and political ramifications, and thus decided that California courts should work on this first, with the Supreme Court coming into play again if and when appeals are forthcoming. Within the published opinions from the court, Nike's attorneys found some hope, as "a majority of the Court expressly rejected the central holding of the California Supreme Court that Nike's speech could be restricted as purely "commercial." 40 Yet neither did they find it to be purely non-commercial, and so the company's confidence could be questioned. Jeff Milchen and Jeffrey Kaplan argued that the result was probably due to Nike's over ambitiousness in not only defending itself on this instance but seeking a precedent that would give corporations more political power. "Nike simply could have challenged Mr. Kasky's standing to sue, since he alleges no personal harm-a precedent that creates legitimate concerns about potential abuse of the law. Instead, Nike ventured beyond it's direct interests to attempt a subversion of our Constitution." The activists suggested that the ruling was, ironically, probably in the interests of Corporate America. "If big business hopes to regain the dwindling trust of Americans, demanding a right to lie is hardly the way to do it. So perhaps the U.S. Supreme Court helped save corporate America from itself... by declining to rule on the Nike Corporation's claim of a constitutional right to lie." 41 As argued in the section 'Just do it... Out of Court', the sooner a legal framework for social and environmental corporate communications is developed, at national and international levels, then the sooner such Court cases will have legal benchmarks to work from, and society more credible information on which to act.

This story took a significant turn in September when Marc Kasky and Nike reached an out-of-court settlement. In the settlement, Nike agreed to make a $1.5 million payment to the Fair Labor Association (FLA). 42 This decision, like the case, proved controversial. Adele Simmons, the chairwoman of the board of the FLA, told the New York Times, she applauded the deal: "This money will be used, clearly, to contribute to our work on workers' rights". 43 Kasky's attorney stated that "this resolution benefits two key groups: factory workers and consumers worldwide. Given the FLA's collaboration across a wide spectrum of companies, universities and NGOs, it is an excellent vehicle for Nike to further develop its corporate responsibility efforts and allow interested consumers to measure the performance of Nike and other companies through public reporting." 44

However, others working on sweatshop issues were outraged, with some questioning the financial concerns of Kasky's lawyers, as the details of any payments to them were not disclosed. Moreover, some criticised the choice of the FLA. "Nike and its corporate buddies basically run the FLA," said Andy Eisen, a student at Lake Forest College and a member of United Students Against Sweatshops (USAS). "It's governed by and for the corporations that it's supposed to monitor." 45 Students also attacked the FLA's operations as secretive and ineffective, saying that most important information is being kept from the public. They asked why Kasky would not have wanted the money to support a group more independent of corporate influence, such as the Workers Rights Consortium. 46

Jeffrey Ballinger, executive director of Press for Change, one group that initiated the corporate campaign against Nike in the 1990s, argued that "if any money is going to come out of Nike to settle this kind of case, it should go to workers who were cheated by Nike. End of story. Nike has never been forced to pay for the cheating that has taken place at their contract factories -- cheating that has been documented at their Indonesian factories for several years. Tens of thousands of workers being paid an illegal training wage. Nike admitted it in 1996." 47

Stepping back, the settlement of this dispute reminds us how the norms and standards for private enterprise are themselves increasingly being privatised, as voluntary initiatives take a greater role. Countries and courts, North and South, seem unable to enforce on corporations those behaviours that have been determined by (at least superficially) democratic processes. Thus the power of corporations in shaping how these new private regulatory processes operate an important research agenda for anyone interested in democracy. Looking one way or the other, either just at the law, or just at voluntary processes, we can only see half the picture.