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 — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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