Sonia Sotomayor and technology: What we know so far

President Obama stepped around two Silicon Valley-area judges to nominate Sonia Sotomayor for the open Supreme Court post. What might the tech world expect from the Bronx-born, Ivy-educated, baseball-saving justice?

Say "Hmm," contractors. A lot of freelancers know the centrist Sotomayor best from NY Times Company v. Tasini, in which a large group of freelance writers sued the Times for putting their articles into LexisNexis without further permission or compensation.

Sotomayor, a district judge at the time, ruled in favor of the Times based on her interpretation of the Copyright Act of 1975. The decision was reversed on appeal and the reversal was upheld by the Supremes -- a win for the contractors, but not from Sotomayor. (Justice David Souter, whom Sotomayor is nominated to succeed, voted in the majority on that decision.)


Copyright and trademark law spoken here. In the private sector, Sotomayor worked at New York's Pavia & Harcourt, where she was a top intellectual property litigator. New Yorkers of a certain age may remember the "Fendi Crush," in which the law firm very publicly tossed thousands of illegal knockoffs of shoes, handbags and the like into garbage trucks to demonstrate the sheer volume of counterfeit goods clogging the market. Sotomayor wasn't just the lead litigator on that project; according to a partner at her former firm, she was known to put on a Kevlar vest and accompany law enforcement on seizures of the fake goods.

A First Amendment friend. She hasn't tackled a ton of such cases in her 18-year judicial career, but for those who remember the Vincent Foster suicide back during the Clinton Administration, Sotomayor was the judge who ruled in Dow Jones v. Department of Justice that The Wall Street Journal should be allowed to see and publish a copy of the former White House counsel's suicide note, stating that the public had "a substantial interest" in knowing what was on that unfortunate man's mind. And in a case concerning an NYPD desk jockey who mailed out racist materials, Sotomayor ruled (in a dissent from her colleagues) that the creep was protected by the First Amendment, since he was doing his thing on his own time and wasn't a representative in any important way of the department.

Not a privacy absolutist. On the other hand, a Department of Transportation employee whose employer searched his office computer did not have a reasonable Fourth Amendment claim. In a ruling she made while on the Second Circuit Court of Appeals, Sotomayor held that the employee -- whose machine was searched after he habitually came in late, blew off work, and spent time on the clock chatting with other employees about computers -- may have had a "reasonable expectation of privacy in the contents of his office computer." Nevertheless, she concluded the search was permissible since it was focused to reveal signs of public-sector employee misconduct. Elsewhere, in US v. Howard, she ruled that state troopers are permitted to lure suspects away from their vehicles in order to search them for drugs.

Practical thinking solves problems. Two words: Baseball strike. Like most fans, your reporter truly believes that the strike of 1994-95 was on its way to being lethal for the sport; in fact, we're still feeling its effects today as we wade out of the steroids era. (If the strike hadn't critically damaged fan interest in the game, perhaps Bud Selig and his ilk would have been less likely to look the other way when Sosa and McGwire turned themselves into parade balloons. Just saying.) Her injunction decision forbidding management to unilaterally implement a collective bargaining "agreement," handed down in just 15 minutes, cleared the deck and got the game back on track.

Readers interested in Judge Sotomayor's appellate record, in which she's handed down over 150 opinions (including two that have been, as you may have heard, reversed by the Supremes), are enthusiastically directed to ScotusBlog's fine overview, published earlier this month. The lengthy analysis is based on a summer-long project undertaken by a team of Akin Gump summer associates last year.

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