June 2, 2009

MI's Jim Copland has a new opinion piece in the National Law Journal, "What of Impartiality?", scrutinizing the nominee's record in such cases as Dabit v. Merrill Lynch (giving a narrow reading to federal preemption and thus allowing certain state securities lawsuits to go forward) and Gant v. Wallingford Board of Education (dissenting from dismissal of lawsuit over black first-grader's demotion to kindergarten). The problem, he suggests, is not entirely the sympathy that Sotomayor has expressed for the style of Legal Realism symbolized by Jerome Frank, but also the question of which social and sociological consequences of judicial action she recognizes. Relatedly, John Hasnas (via Adler) invokes Bastiat's celebrated essay on "the seen and the unseen" consequences of government action.

Separately, Jim Copland hosts a podcast with Ilya Somin on the current state of Supreme Court property rights/eminent domain jurisprudence and how Sotomayor's ascension might change matters.

P.S. Also, Andrew Sullivan yesterday sent this site about eleventy-billion new visitors. Thanks!