Monthly Archives: May 2009


In A kindred spirit on the Court, Paul Krugman blogs that,

I got into economics because I wanted to be Hari Seldon.

Posted in Econ & Money | 7 Comments

Sotomayor’s Techlaw Jurisprudence

Via James Tyre, a pointer to this interesting BNA-provided tidbit: TechLaw: Judge Sotomayor Is First Nominee With Cyberlaw Record. In fact, she's participated in quite a lot of tech-related cases.

Specht is a good decision. It's both conservative and liberal: it's conservative in the sense that it followed precedent (I think it would have been unremarkable 10 years earlier) but liberal in the sense that it resisted, and may have helped stop, an incipient trend to push contract notice law in a more anti-consumer direction.

Posted in Law: The Supremes | 1 Comment

More on Sotomayor

The battle lines are drawn. Democrats will start by noting that in 2005 Republicans claimed filibustering Judicial Nominees was the most hideous form of political subversion. Up or down vote was the mantra. And it's all on tape at

The White House is going to take the high road, noting over and over again that no Supreme Court justice in a hundred years has had this much prior experience on the federal bench — without worrying about what this might mean for any future nominee who wasn't a judge.

To those on the right who try to attack Sotomayor's credentials, the White House will not play the racism card, but rather let the record speak for itself,

Coming from a housing project in the Bronx, Sotomayor ended up graduating summa cum laude and Phi Beta Kappa from Princeton. She also was a co-recipient of the M. Taylor Pyne Prize, the highest honor Princeton awards to an undergraduate. Sotomayor then went to Yale Law School, where she served as an editor of the Yale Law Journal and managing editor of the Yale Studies in World Public Order.

According to a “senior White House source” President Obama narrowed the choice to four finalists before choosing Sotomayor. So far, the RNC message in response seems flat-footed. Compare the White House Press Office Backgrounder on SotoMayor with RNC Sotomayor talking points — the latter is pretty thin gruel. That may be due to the White House's tactical timing of the nomination

Will the RNC anti-“empathy” drumbeat tried out last week work? I rather doubt it. There's more of an opportunity to whip up the base with Sotomayor's taken-out-of-context quote about how she hopes that a Latina judge might make better decisions about some issues than white male judges. Because I think this will be the main line of attack on Sotomayor, it's worth quoting the context in some detail,

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach. For all of us, how do change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

Works for me.

But combined with Sotomayor's decision in the New Haven firefighter's case, expect more stuff like this, “She reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety.” (White House response: She was following circuit precedent — how can anyone attack her as an activist judge and attack her for following circuit precedent?)

PS. How times have changed dept: If Sotomayor is confirmed, six of the nine Justices will be Catholics. Will anyone care? (I was surprised to learn that Roger B. Taney, appointed Chief Justice in 1836, was the first Roman Catholic Justice.)

Posted in Law: The Supremes | Leave a comment

The Sotomayor Nomination

The best analysis I've seen so far of the politics of the Sotomayor nomination is SCOTUSblog, The Dynamic of the Nomination of Sonia Sotomayor.

I don't agree with every word, but the key points seem right:

  • Obama has the votes for this;
  • That won't stop the interest groups from going berserk, because that's what they do and they get rich off it;
  • Key Republicans will take a dive because the costs of opposition are too great;
  • The Republicans, and the interest groups, will exact payback on the next one.
Posted in Law: The Supremes | 2 Comments

Join the Call for Fed Transparency

The Fed is one of the most autonomous parts of our government, arguably for good reasons. But that doesn't mean it shouldn't be accountable.

Which is why I signed the petition at in support of The Federal Reserve Transparency Act.

You can too.

Posted in Econ & Money | 4 Comments

University of Miami Law School Announces Foreclosure Defense Fellowships

The University of Miami School of Law is pleased to announce the availability of a number of Foreclosure Defense Fellowships for May 2009 UM Law graduates who become members of the Florida Bar. Our goal is to provide meaningful and fulfilling post-graduate alternatives while helping local residents caught in the foreclosure crisis. In addition to the honor of being selected, participants will acquire real-world work experience, have the satisfaction of helping address a serious need in our community, and still have some free time to look for longer-term employment.

Winners of these Fellowships will receive a limited grant totaling $10,000, paid in monthly installments, in exchange for a commitment to (1) attend a three or four day training session in late September, and then (2) work at least three days a week for 27 weeks with either Dade Legal Services or Broward Legal Aid, commencing as soon as you are admitted to the Florida Bar.

Further details are available on the application form at

This announcement, which I just sent to all of our recent graduates, represents a milestone in a project I’ve been working on for some time: trying to get one problem (the lousy market for law graduates) to help solve another (South Florida’s foreclosure crisis).

The need is great.

South Florida is ground zero for the national foreclosure crisis. The courts and the legal system are overwhelmed by this legal tsunami. In all of 2006, fewer than 10,000 foreclosures were filed in the Miami-Dade courts. In the first month of 2009, more than 6,000 foreclosures were filed in those same courts — more than half the annual number 3 years ago — and the rate of foreclosure filings has increased since then. Last year 56,656 foreclosures were filed in Miami-Dade County alone. This year we are on track to double that number. Although hard figures are difficult to come by, it is estimated that almost a third of these local foreclosure cases involve owner-occupied homestead property (“residential homestead mortgage foreclosures”), and that a very large fraction of the borrowers in those cases are unrepresented.

This is an unprecedented legal crisis for our community. As the Daily Business Review recently put it, “thousands of families are being displaced. Some end up on the streets or in shelters.”

The program I have created, with the help and strong support of Interim Dean Paul Verkuil and several other members of the UM faculty and administration, is only a beginning, and very much in need of funding support. I and others will be working during the summer to try to raise money for it, and also for an expanded version that would place our graduates in law offices where they would work as solo pro bono practitioners under the helpful eye of experienced lawyer-mentors. If you know anyone with a quarter of a million dollars, or even the odd thousand, who would like to help in this important work, please send them my way.

And if you are a Miami 3L looking for a job, but cannot find one, please consider this chance to do good and learn from top lawyers at the same time. I think the opportunity, while not very remunerative in dollars, will pay off in the satisfaction of doing good, in learning lawyering skills, and might just impress your next employer.

(In a further attempt to help struggling members of our community, the UM School of Law will also be offering a limited number of substantial scholarships to qualifying students who apply to the LL.M. in Real Property Development and agree to do 15 hours per week of supervised pro bono foreclosure defense representation. Participants in this program do not need to be members of the Florida Bar. Applicants for LL.M scholarships must complete both the regular application for the LL.M in Real Property Development and also a special scholarship application available from the LL.M in Real Property office.)

In the extended part of this post, I’ve put the (slightly reformatted) text of the Foreclosure Defense Fellowships application form.

Continue reading

Posted in Law School | 23 Comments

Bush WH Linked to Abu Ghraib

In Establishing the connection between the Bush White House and Abu Ghraib my brother reports on work that connects the dots,

Denying that White House policy was directly responsible for the vile abuse of prisoners at Abu Ghraib has been the central goal of a five-year disinformation campaign by Bush officials. 'Torture Team' author Philippe Sands argues that newly-disclosed records show how blatantly Bush officials were willing to lie in order to lead reporters away from the truth.

Also, other good stuff at Neiman Watchdog.

Posted in Torture | 1 Comment