{"contentId":"2865198","authorDomain":"lisa-green"}

Sotomayor, Ginsburg ... and me

Justice Ruth Bader Ginsburg made no secret of her preference that another woman replace Justice David Souter and join her on the Supreme Court. But will she and Judge Sonia Sotomayor, if confirmed, see eye to eye?
My research finds only one case in which Justice Ginsburg wrote an opinion in which the Supreme Court overruled Judge Sotomayor -- and it's in a case I worked on as an associate in private practice.
In 1997, Judge Sotomayor, then a federal district court judge, ruled that the New York Times and other news organizations had the right to reproduce freelance journalists' articles in electronic databases such as Lexis/Nexis without asking their permission. Judge Sotomayor decided that the publishers were within their rights under the 1976 Copyright Act (specifically under section 201(c), which governs republication of collective works, like newspapers or magazines). Her decision in that case may account for the muted response of the lead plaintiff, Jonathan Tasini, to today's news. On appeal, the freelancers persuaded the Second Circuit Court of Appeals (where Judge Sotomayor now sits) to side with them, and the Supreme Court, in a 7-2 ruling authored by Justice Ginsburg, agreed. I helped represent the news organizations in Tasini, sat in on oral arguments before Judge Sotomayor, and eagerly awaited (and, obviously, welcomed) her opinion. So I can't help but wonder if the two judges will soon have occasion to revisit the case -- this time in a collegial discussion.

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{"commentId":7291398,"authorDomain":"tyler"}
My research finds only one case in which Justice Ginsburg wrote an opinion in which the Supreme Court overruled Judge Sotomayor -- and it's in a case I worked on as an associate in private practice.

Nice pull, Lisa - would some of the other possibilities have had lots of prior differences with Justices?

{"commentId":7291398,"threadId":"587967","contentId":"2865198","authorDomain":"tyler"}
    Reply#1 - Tue May 26, 2009 5:00 PM EDT
    {"commentId":7308328,"authorDomain":"lisa-green"}

    Good question Tyler: two of the other three women thought to be on the President's short list -- solicitor general Elena Kagan and Homeland Security chief Janet Napolitano -- have not served on the federal bench. (Kagan was nominated to the D.C. Circuit Court of Appeals by President Clinton but that nomination stalled.) The third, Diane Wood of the Seventh Circuit Court of Appeals, had a decision reversed in an 8-1 opinion penned by Justice Ginsburg. The case, Tellabs v. Makor Issues, is about the state of mind required to plead a securities fraud case in federal court. Thisis a great link for more on Diane Wood's background and interaction with the Supreme Court. After all, the President may have another spot to fill on the Court during his term in office.

    {"commentId":7308328,"threadId":"587967","contentId":"2865198","authorDomain":"lisa-green"}
      Reply#2 - Wed May 27, 2009 12:26 PM EDT
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