Walter Olson comments on Barack OBama's nomination of Sonia Sotomayor to the Supreme Court:
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."
Issues of business law don't come across as Sotomayor's great passion one way or the other, so it's hard to know what all this portends for the high court's direction on business issues should she be confirmed. As Home Depot's ( HD - news - people ) Bernard Marcus and others have pointed out, for all of David Souter's predictable role on the court's liberal side in most high-profile cases, he in fact steered to middle-of-the-road, hard-to-characterize views on many issues of litigation, liability and procedure, either as a swing vote or as the author of opinions. (Two key issues to watch: what sort of constitutional restraints, if any, there are on punitive damages, and how much scrutiny judges should give to initial pleadings to determine whether a federal lawsuit ought to go forward.)
In a post at Point of Law, Olson reports:
Randy Maniloff at White and Williams finds that she's ruled mostly for insurers against policyholders (PDF) in coverage disputes -- not usually seen as the more "liberal" or empathy-driven way of doing things.
OTOH, the Business Law Professor observes:
I was reviewing Judge Sotomayer's record on business cases and the same word kept coming up, reversed. There is little to be said of a consistent record learning one way or the other on the business cases except the high frequency of reversals by the Supreme Court whenever one of her cases goes up on appeal. There is one case she wrote that I do not like at all and that is her opinion several years back giving the NYSE immunity from investor actions questioning the manipulative activities of NYSE floor brokers and specialists. The NYSE has change enough to moot the opinion, but at the time it I found it poorly reasoned and of questionable policy to boot.
