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Univ. of Arkansas, Fayetteville

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Monday, June 15, 2009

Sotomayor and Property Rights

Today's Times has an article on how property rights issues might come up in Judge Sotomayor's confirmation hearings.  The article focuses on the Second Circuit's opinion in Didden v. Port Chester.  The opinion was unsigned, but Judge Sotomayor was on the panel.  I'm on the record as thinking that Didden was wrongly decided, but I'm not sure how much the case says about Judge Sotomayor's actual views on property rights issues.  My biggest impression of the opinion is that it is just sloppy, as many unsigned appellate court opinions can be.  As I noted before, it isn't clear that either the members of the panel or the clerk who wrote the opinion had actually read the Supreme Court's opinion in Kelo.  There were also a number of procedural reasons why the District Court order should have been vacated -- the District Court granted a motion to dismiss without treating the plaintiff's allegations as true while giving credence to some of the defendants' testimony from a preliminary injunction hearing.  In this sense, Didden resembles the similarly unsigned opinion in Ricci v. DeStefano, the New Haven firefighters case that also appears to have been procedurally sloppy.  My impression from both cases is that they may be troubling more for the tendency of appellate courts to be lazy in getting rid of some cases through weak unsigned opinions than they may be on the merits of those cases.

Ben Barros

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