Monthly Archives: May 2009

FIU Makes a High-Stakes Bet on Alex Acosta

Controversial Alexander Acosta has been named Dean at neighboring FIU Law. See the AP story and the FIU statement. He'll be stepping down as US Attorney in a few days, and starts soon after.

FIU President Modesto A. Maidique said, “His connections at the national and local level and his proven leadership here at home will inspire the next generation of law students at FIU.''

I've never met Mr. Acosta, but I hear from those who have that he's a genuinely impressive human; smart, confident, very articulate. These are good qualities for a Dean. He'll need all those qualities, because jumping into academe is much harder than it looks. There have been some fine practitioner law Deans, but they are in the minority (cf. Why A Practitioner Dean Sounds Like A Better Idea Than It Usually Is). One thing to look forward to: a visit by Justice Alito, for whom Mr. Acosta clerked while he was on the Court of Appeals.

In addition to his extensive local ties, Mr. Acosta also has a sterling c.v., including praisworthy work on language-access issues, but there are also some question marks. Before becoming the local US Attorney, Mr. Acosta served in a leadership role in the Bush Justice Department as the Assistant Attorney General for Civil Rights. That means he was responsible for among other things:

By some accounts Mr. Acosta did much better at the US Attorney's office than I would have predicted from his resume, or from his initial statement that his chief law enforcement priority would be porn rather than terrorism, narcotics trafficking or, say, public corruption. But there are also reasons to doubt whether things were as great as some local lawyers have liked to suggest: his office tried the Liberty City Six (Seven, Five, whatever) three times, at the cost of millions that surely could have been better spent. It was on Mr. Acosta's watch that prosecutors in the US Attorney's office made recordings of defense lawyer (and blogger) David O. Markus in violation of internal policies of the U.S. Attorney's Office and federal evidentiary rules. This lead U.S. District Judge Alan S. Gold, only a few weeks ago, to issue a strongly worded, 50-page opinion, reprimanding prosecutors from the US Attorney's office, and requiring the government to pay $600,000 in sanctions for Mr. Acosta's subordinates' misdeeds.

Although the gracious Prof. Wasserman says at Prawfsblog that the public nature of the FIU Dean search did not affect the outcome, one can't help wondering. Once a local reporter mistakenly identified Mr. Acosta as a leading candidate (when he was in fact at the top of a very long alphabetical list), that made it much more difficult for him not to be shortlisted. The faculty may or may not have wanted him. Then again, we don't know whether the other top candidates kept their hats in the ring, or whether this is something FIU law faculty member and irascible columnist Stanley Fish lobbied for, or FIU President Mitch Maidique just wanted.

I hope FIU Law prospers under Dean Acosta — their students and faculty deserve it, and it's certainly good for us intellectually to have another thriving faculty so near by.

Meanwhile, I'm happy about our new Dean. (See Patricia D. White to Be Dean of University of Miami School of Law.)

Posted in Law School, Miami | 7 Comments


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 | Comments Off on More on Sotomayor

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