Judge Sotomayor’s 1996 Suffolk University Law Review article has a couple of interesting passages with relevance to those who care about tort reform.
On the plus side, she says good things about the Daubert case, and agrees with reformers that the “battle of the experts” problem can undermine public confidence in the judicial system.
On the minus side, on page 46, she refers to the then-pending tort reform legislation of the Common Sense Product Liability Legal Reform Act of 1996, and flatly says that it is “inconsistent with the premise of the jury system” because only judges and juries can limit damages. This, of course, is not just a violation of judicial canons in terms of commenting on pending legislation, but it is entirely false as a legal matter: It is entirely within the legislative power to set the scope of penalties for violations of constitutional laws. Judge Sotomayor’s argument is not just a statement of judicial activism, it’s a disturbing statement of judicial supremacy over the other branches of government, and I hope someone on the Senate Judiciary Committee inquires into it. (Hat tip to Quin Hillyer for first pointing this passage out to me.)