May 26, 2009
Sotomayor on Business Cases
I was reviewing Judge Sotomayor'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.
May 26, 2009 | Permalink
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Well, at least she understands the point of regulation - to create rents for the regulated and to extract them from the customer.
Sorry if my sarcasm splashed all over you.
Posted by: Methinks | May 27, 2009 4:12:23 PM
She has been reversed in three cases out of the six cases where the U.S. Supreme Court granted certiorari from her decisions at the Second Circuit, at which she has authored something on the order of 380 published opinions. The average reversal rate when certioriari is granted is about 75%. Thus, her reversal rate is actually below average, and more than 99% of her decisions are, of course, not reversed.
Also, in cases where there is an existing circuit split, and your circuit is on the wrong side of the split in the opinion of SCOTUS, due to prior decisions of your circuit, a consciencious appellate judge is supposed to reach a decision which will be reversed on certiorari review. Similarly, a consciencious appellate judge is supposed to reach a decision which will be reversed on certiorari review when there is binding U.S. Supreme Court precedent which it chooses to overrule in its review. No judge worth his or her salt is ever entirely free from being reversed on appeal.
Posted by: ohwilleke | May 27, 2009 4:56:01 PM
Am I to understand your last paragraph as a conscientious judge is supposed to decide certain cases on the assumption cert will be granted and they will be overruled?
Posted by: anon | May 28, 2009 6:42:39 AM