07 June 2009

Weekend light reading: Judge Sotomayor's questionnaire

The Senate Judiciary Committee has posted Judge Sonia Sotomayor's answers to the questions all SCOTUS nominees are asked to answer (PDF).
12. Published Writings and Public Statements:
a. List the titles, publishers, and dates of books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited, including material published only on the Internet. Supply four (4) copies of all published material to the Committee.
That'll be interesting to see when people who have kept blogs for years start getting nominated for this kind of thing. Didn't LiveJournal just mark their 10th anniversary? Judge Sotomayor's answer goes back to letters to the editor in 1974 and 1976. Not that I'd ever be nominated for the Supreme Court -- or, let's be clear, anything at all -- but it makes me wonder if even a really good LEXIS newspaper search would find a couple of letters to the editor I wrote when I was a teenager. What a drag. Sotomayor wrote to her undergrad university paper about racism; I wrote to my undergrad university paper about the copy editor letting in the word suffrage when the author meant suffering.
13. Judicial Office:
[... ]

e. For each of the 10 most significant cases over which you presided, provide: (1) a capsule summary of the nature the case; (2) the outcome of the case; (3) the name and contact information for counsel who had a significant role in the trial of the case; and (4) the citation of the case (if reported) or the docket number (if not reported).
She lists the case where she saved Major League Baseball first. Whee!
Provide a brief summary of and citations for all of your opinions where your decisions were reversed by a reviewing court or where your judgment was affirmed with significant criticism of your substantive or procedural rulings. If any of the opinions listed were not officially reported, provide copies of the opinions.
A brief scan of the cases shows that a good number of them were not reversed for faulty reasoning but were reversed "in light of" SCOTUS opinions handed down while the cases were still pending -- cases like Booker and Crawford. In other words, to all the people who have been crowing about her "high" reversal rate: she or the panel she was on decided the case correctly and following precedent when it was before them, but the law changed afterward in a way that procedurally allowed those particular questions, but not necessarily the convictions, to go the other way.

For example, "The Supreme Court vacated and remanded the case for further consideration in light of its intervening decision in Booker rendering the United States Sentencing Guidelines advisory in nature" (U.S. v. Sanchez-Villar, 544 U.S. 1029 (2005)). Or, even better, "The Court then vacated the Second Circuit’s decision in LaFontaine, as it did with many other cases, and remanded for further proceedings in light of Crawford. On remand, the Second Circuit held that the introduction of LaFontaine's plea allocution was error, in light of Crawford, but that the error was harmless" (LaFontaine v. U.S., 543 U.S. 801 (2004)). (In non-legalese: defendant lost, no matter which rule Sotomayor's court used, because the first decision, which was wrong when tested under the new rule, was not wrong enough to have affected the criminal trial. Therefore, Judge Sotomayor is tough on crime.)

But uh-oh! Judge Sotomayor hates authors! Look at this decision of hers when she was a district judge in 1997 (New York Times Co. v. Tasini, 533 U.S. 483 (2001)):
The district court held that publishers did not violate freelance authors' copyrights by placing the contents of the publishers' periodicals into electronic databases (e.g., Lexis/Nexis) and onto CD-ROMs without first securing the writers' permission, because section 201(c) of the Copyright Act granted publishers the privilege of reissuing or revising collective works, and did not limit such republications to the original medium.
Huh? Maybe she came down this way because, in 1997 (or presumably even earlier in the 1990s, when the conduct the case was based on actually occurred), CD-ROMs were new and mysterious and scary and too technological for anyone to understand, and maybe a little threatening, too, because you used to get them unsolicited in the mail all the time from AOL. Back in those olden days, a lot of new technology cases were decided stupidly. But anyway:
The Second Circuit reversed, holding that section 201(c) does not permit publishers of collective works to license individually copyrighted works for inclusion in electronic databases, and that the publishers therefore were required to negotiate such licenses in their contracts. The Supreme Court affirmed the Second Circuit's decision.

This case is a big deal for intellectual property nerds. It means that you have to include all kinds of ridiculous language in licensing contracts with book publishers, movie producers, and videogame publishers, talking about media now in existence or yet to be invented, because if you don't include it, the publisher doesn't get it. Which is nice for authors, if publishers get greedy after the ink is dry. And it's nice for the lawyers whose publisher-employers pay them by the hour to try to think up language about new media yet to be invented. For example, last time I drafted a content licensing contract, I even included Laserdiscs, in anticipation of the global Laserdisc resurgence, when everybody in the world will magically come to their senses and finally recognize the superiority of Laserdiscs over lossy, lossy DVDs. Anyway, we IP nerds need to entertain ourselves somehow.

No comments: