The Corner

The Decisions that Matter

Early discussion about Judge Sotomayor has focused on her participation in the New Haven firefighters case, her “wise Latina” Berkeley speech, her comment that courts are where “policy is made.” As more people dig into her actual record, Judge Sotomayor’s approach to more mundane business law subjects may increase in significance. As Overlawyered’s Walter Olson notes:

Two 2006 cases present more problems for Sotomayor advocates, but they’re on subject matter that could come off to the public as dry and remote: Merrill Lynch v. Dabit, where she held that state courts could entertain certain securities lawsuits notwithstanding the preemptive effect of federal law (reversed 8-0 by the high court), and Knight v. Commissioner, on the deductibility of certain trust fees, in which the court upheld her result but unanimously rejected her approach as one that (per Roberts) “flies in the face of the statutory language.”

If these cases are indicative to her overall approach to the law, they suggest Justice Sotomayor could be the most liberal justice on the Court when it comes to her willingness to expand causes of action subjecting private businesses to suit and is not particularly constrained by statutory text.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

Most Popular

Culture

Courage: The Greatest of Virtues

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Or Listener), As the reporter assigned the job of writing the article about all of Sidney Blumenthal’s friends and supporters told his ... Read More
Immigration

My American Dream

This morning, at 8 a.m., I did something I’ve wanted to do for as long as I can remember: I became an American. I first applied for a visa in early 2011, and since then I have slowly worked my way through the system — first as a visa-holder, then as a permanent resident (green card), and, finally, as a ... Read More
U.S.

The Gun-Control Debate Could Break America

Last night, the nation witnessed what looked a lot like an extended version of the famous “two minutes hate” from George Orwell’s novel 1984. During a CNN town hall on gun control, a furious crowd of Americans jeered at two conservatives, Marco Rubio and Dana Loesch, who stood in defense of the Second ... Read More