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Supreme Court Nominee Sotomayor's Cyberlaw Record

ScuttleMonkey posted more than 5 years ago | from the yes-but-does-she-know-what-she-is-talking-about dept.

The Courts 384

Hugh Pickens writes "Thomas O'Toole writes that President Obama's choice for Associate Supreme Court Justice, Sonia Sotomayor, authored several cyberlaw opinions regarding online contracting law, domain names, and computer privacy while on the Second Circuit. Judge Sotomayor wrote the court's 2002 opinion in Specht v. Netscape Communications Corp., an important online contracting case. In Specht, the Second Circuit declined to enforce contract terms (PDF) that were available behind a hyperlink that could only be seen by scrolling down on a Web page. 'We are not persuaded that a reasonably prudent offeree in these circumstances would have known of the existence of license terms,' wrote Sotomayor. Judge Sotomayor wrote an opinion in a domain name case, Storey v. Cello Holdings LLC in 2003 that held that an adverse outcome in an administrative proceeding under the Uniform Domain Name Dispute Resolution Policy did not preclude a later-initiated federal suit (PDF) brought under the Anticybersquatting Consumer Protection Act (ACPA). In Leventhal v. Knapek, a privacy case, Judge Sotomayor wrote for the Second Circuit that New York state agency officials and investigators did not violate a state employee's Fourth Amendment rights when they searched the contents of his office computer (PDF) for evidence of unauthorized use of state equipment. While none of these cases may mean much as far as what Judge Sotomayor will do as an Associate Supreme Court Justice 'if confirmed, she will be the first justice who has written cyberlaw-related opinions before joining the court,' writes O'Toole."

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384 comments

Cyberlaw (3, Insightful)

2names (531755) | more than 5 years ago | (#28143337)

Can we please stop with the "Cyber-" every damn thing?

Re:Cyberlaw (0)

Anonymous Coward | more than 5 years ago | (#28143543)

NO!

Re:Cyberlaw (5, Funny)

frosty_tsm (933163) | more than 5 years ago | (#28143583)

NO!

Correction: Cyber-NO!

Re:Cyberlaw (5, Funny)

sexconker (1179573) | more than 5 years ago | (#28144239)

Cyber-Correction: Cyber-Correction: Cyber-NO!

Re:Cyberlaw (3, Funny)

Itninja (937614) | more than 5 years ago | (#28143569)

I grow tired of that too. But I think of no more concise way to define laws relating to IT principles. I am open to suggestions however. Maybe, "Elaw" or "Etherlaw"??

Re:Cyberlaw (4, Insightful)

Phoenixhawk (1188721) | more than 5 years ago | (#28143781)

/law

Re:Cyberlaw (-1, Troll)

eln (21727) | more than 5 years ago | (#28143575)

We can't. The nomination of a Chief Justice is not in any way News for Nerds and would not fit anywhere on Slashdot except maybe the Politics section. However, the Slashdot editors also know that this discussion has been driving traffic through the roof at other discussion sites, and want in on the action. I'm guessing maybe a lot of people have the Politics section blocked, so they need to find a way to put it in another section to generate the maximum hit count. So, we now have "cyberlaw". I'm sure we'll eventually have "cyberidle" so samzenpus can get more of his lame stories out of the Idle section.

Re:Cyberlaw (4, Insightful)

Itninja (937614) | more than 5 years ago | (#28143673)

The nomination of a Chief Justice is not in any way News for Nerds

I disagree. There are many kinds of nerds. It's only presumed that /. is for computer nerds. But there are band nerds, civil war nerds, and even Supreme Court nerds. If you had ever met Nina Totenberg you would know I speak the truth.

Hi Itninja (1)

Sybert42 (1309493) | more than 5 years ago | (#28143819)

You will ignore (not reply to) this message because you don't understand that the Singularity is coming.

Re:Hi Itninja (1, Offtopic)

Itninja (937614) | more than 5 years ago | (#28143965)

I don't get it.

Re:Cyberlaw (2, Informative)

RepelHistory (1082491) | more than 5 years ago | (#28144151)

Besides, it would take a Supreme Court Nerd to remind you that she's up for the position of Associate Justice, not Chief Justice as grandparent says. That position was filled by Bush's appointee John Roberts. The Chief Justice serves as the chief administrator and spokesperson for the Judicial branch, presides over the impeachment of presidents, gets automatic seniority over his or her colleagues, and has a few additional administrative responsibilities. Associate Justices just vote on cases and write opinions.

Sotomayer is a nightmare (4, Informative)

fyngyrz (762201) | more than 5 years ago | (#28144235)

She's an outright constitutional nightmare [wordpress.com] , chief or associate position notwithstanding. Exactly the kind of thinker who erodes the constitution at a terrifying pace. Her history as a judge contains an amazing number of constitutional misinterpretations, misrepresentations, and outright bewilderment.

Odds are excellent that's she's going to be confirmed, though; get ready to bend over for "enhanced legislation." The light in this tunnel is definitely a train.

Re:Cyberlaw (1)

sryx (34524) | more than 5 years ago | (#28144205)

It warms my heart to see Nina Totenberg come up in conversation : )

Re:Cyberlaw (0, Troll)

lgw (121541) | more than 5 years ago | (#28143827)

So let's talk about the politics. I thought we were beyond the days when a nominee for the SCOTUS would say things like this:

I would hope that a rich white male with the wisdom of his experience would more often than not reach a better conclusion than a Latina woman who hasn't lived that life. - Sotomayor

I had really hoped that the days of open racism by those in the highest offices was a thing of the past. (Some details of the above quote may have been reversed in ways that do not change it's racist nature.)

Re:Cyberlaw (2, Informative)

eln (21727) | more than 5 years ago | (#28143839)

There are already like 10 threads dedicated to that exact quote. It's been talked to death, and like most things in politics, no one is going to change their minds and everyone is being driven by their own ideology. It's pointless to start a new discussion of it here.

Re:Cyberlaw (3, Funny)

lgw (121541) | more than 5 years ago | (#28143867)

If slashdot is not the home of pointless discussions, I've been mistyping the URL for the past 10 years.

Re:Cyberlaw (1)

Mister Whirly (964219) | more than 5 years ago | (#28143987)

I had really hoped that the days of open racism by those in the highest offices was a thing of the past.

So you prefer that they hide such things until after they take office? To be honest I would rather deal with a David Duke or Al Sharpton - at least they are more open about their racism and you know exactly what you are getting.

Re:Cyberlaw (0)

Anonymous Coward | more than 5 years ago | (#28143607)

unless of course it's cybersex

Re:Cyberlaw (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28143617)

The problem with this is...oh God my cock is so fucking hard. I jerked off over lunch lying next to a beautiful woman who was fucking herself with a vibe. She wouldn't let me fuck her because she is married, but I did see her in all her nude glory. I also massaged her small, perky tits and her pencil eraser sized nipples were tweaked and pinched. She came first; I came second. I held out because I wanted her to watch me splurge all over, and what a huge load it was. She even said wow, you came a lot! Yes. Yes I did, my dear. Thinking about this now is why my dick is suffering from such a raging hard on.

Re:Cyberlaw (0)

Anonymous Coward | more than 5 years ago | (#28143657)

Agreed. It isn't 1995 anymore, I really thought we had grown out of the whole "cyber" thing, as it doesn't even really mean anything.

Amid all this security talk in the news, I even saw an article calling it the "information superhighway". Who really says that besides clueless journalists?

Please, Mr Obama, don't make the term "cyber-czar" an official term.

Re:Cyberlaw (1)

Lord Ender (156273) | more than 5 years ago | (#28143793)

Be quite, you cyber-whiner.

Re:Cyberlaw (3, Funny)

bonch (38532) | more than 5 years ago | (#28143875)

What did you say? I was too busy surfing the information superhighway for info on the long tail using podcast-enabled Web 2.0 productivity enhancers while blogging and tweeting in the cloud. LOLWUT. THIS. FIXED. AMIRITE? ^_^

Sometimes I wish the internet would disappear. Excuse me, I mean that it should DIE IN A FIRE.

Re:Cyberlaw (1)

Mister Whirly (964219) | more than 5 years ago | (#28144029)

Nobody is putting a gun to your head and forcing you to use it.

Re:Cyberlaw (1)

PopeRatzo (965947) | more than 5 years ago | (#28144211)

Can we please stop with the "Cyber-" every damn thing?

Do you have a better prefix to suggest that would indicate something having to do with the Internet?

You sound like one of those cranky old men: "What's with all the kids with their "rock" music? What does it have to do with rocks, anyway?"

2names, it sounds like you might have had a tough week. Why don't you try what I do on such a Friday: take a coupla vicodin with three fingers of rye whiskey?

It takes the edge off of things real nice.

Searching a government computer... (1)

BumbaCLot (472046) | more than 5 years ago | (#28143351)

is nothing like the guy getting a felony hacking charge for going to a dating site. Who here feels like their work computers are private?

Re:Searching a government computer... (1)

Mister Whirly (964219) | more than 5 years ago | (#28144067)

I sure don't. Seeing my employer owns the computer, the network, and my time for 8 hours a day - they can dictate policy. If i don't agree I am free to pursue employment elsewhere. To say nothing of all the hours that paid employees waste doing their own personal stuff on work computers. (Like reading Slashdot at work, which I am doing now)

Goodstart I suppose (1)

Killer Orca (1373645) | more than 5 years ago | (#28143381)

Perhaps judges will become more knowledgeable about technology and we'll get less misinformed decisions, or things could stay the same.

Re:Goodstart I suppose (2, Interesting)

gubers33 (1302099) | more than 5 years ago | (#28143457)

Is she really that knowledgeable though? Some of the decisions make sense, but Specht v. Netscape Communications Corp. she ruled in favor of Specht just because the license terms were behind a hyperlink on the webpage. I feel like this is exactly like not reading the fine print on a paper document. Just because someone neglects to read the terms when they are readily available they aren't obligated to follow those terms. I'm just saying the two are very a like, but if she thinks the hyperlink is not readily available then she definitely is not that knowledgeable on technology.

Re:Goodstart I suppose (4, Interesting)

Naturalis Philosopho (1160697) | more than 5 years ago | (#28143599)

It's not whether or not it's available, it's whether an average person would scroll down, follow the link, read it, understand it, and consider it a legally binding contract. That's what a lot of contract law is about: defining what things mean so that both parties can reasonably be expected to understand and therefore be held to the meat of the contract. Right?

Re:Goodstart I suppose (1, Interesting)

gubers33 (1302099) | more than 5 years ago | (#28143767)

Agreed. I mean I think that the Terms of Use on all websites are all complete and utter bull and could no way whatsoever be enforced(EXAMPLE Google's Terms of Use say you must be at least 18 years of age). Netscape Smart Download was not a site, but instead was software. I feel like if you download software than you should read the License and Support Agreements that go with it. Which stated the software had internet monitoring software built in which is why the case came about. However the main problem with these case was a bug where you could download the software before agreeing to the terms, even though the terms say that you can't download it until after the fact.

Re:Goodstart I suppose (3, Insightful)

2short (466733) | more than 5 years ago | (#28143659)

If you can get what you want from a web page, do you scroll down to see if there is a hyperlink going to some fine print? Before you posted, did you scroll to the bottom of this comment page to see if there was any such link?

On a paper document, the fine print comes before the place you sign. You might not read it, but you know it is there. If you want people bound by your terms, online or on paper, you don't have to make sure they read them, but it is up to you to make sure they know they are there.

In any case, there's no lack of knowledge here. She knew exactly how accessible the terms were, whether you disagree about the legal implications of that accessibility or not.

Re:Goodstart I suppose (0)

Anonymous Coward | more than 5 years ago | (#28143763)

Perhaps judges will become more knowledgeable about technology and we'll get less misinformed decisions, or things could stay the same.

Your mention of their decision-making made me think of why I'll never, ever be a judge.

My position would be very simple. If I were a judge, and it's an issue that isn't black-and-white, the government would never, ever get what they want in my courtroom unless they have a REALLY GREAT reason for it. For issues that are not black-and-white, most of the time they don't, they just want to set a precedent that legitimizes a questionable practice.

Re:Goodstart I suppose (3, Interesting)

Jeng (926980) | more than 5 years ago | (#28143837)

As long as the lawyers can shop around as to which district they can sue in then the lawyers will still purposely find the stupidest judge for the case. So its kinda a weakest link sort of situation.

Wait, what? (5, Insightful)

SatanicPuppy (611928) | more than 5 years ago | (#28143383)

How could he cry unreasonable search on a computer that didn't belong to him? It's the property of his employer, and, unlike a case where he would be leasing it, and thereby be able to claim some contractual ownership rights, in this case it is clearly their property.

I think if there is anything resembling a reasonable search, that's it. You have no reasonable expectation of privacy on a work computer.

Re:Wait, what? (0)

Anonymous Coward | more than 5 years ago | (#28143559)

I disagree. It's a tool given by work to perform work. However even work tools can be used for personal reasons. Work phone? Company cell phone? I believe it's reasonable to assume that some personal calls may be used on a company cell phone. Should the company have a right to record every phone conversation you have? How about company stationary? If you write a personal note to a friend is it their right to read it as it's company property?

I believe there is a bit of give and take on work tools. I have no idea exactly what his opinion on that case was and i dont' care, but i would assume if my job was ever terminated people wouldn't go through my browser's history and look at all the cookies generated unless it was directly related to my work.

Re:Wait, what? (1)

tool462 (677306) | more than 5 years ago | (#28143645)

Should the company have a right to record every phone conversation you have?

As long as you're made aware that this will occur, then yes. As stated, it's a company phone. If you're not comfortable with that, then you get your own personal cell phone for personal calls.

Actually, for exactly this reason, I use my gmail account for email with all of my friends and family. Work email is used for work only. Only my wife and parents even know what my work email is.

Re:Wait, what? (1)

hypergreatthing (254983) | more than 5 years ago | (#28143713)

So if your wife accidentally wrote your an email to your work account stating that she got your package of viagra, i would hope for your sake that you would assume that the personal message would not be company property/disclosed and your co-workers wouldn't be laughing at your expense during lunch about your erectile dysfunction.

Separation isn't the problem, it's the notion that privacy and work can't both exist at the same time.

Re:Wait, what? (1)

sys.stdout.write (1551563) | more than 5 years ago | (#28144045)

So if your wife accidentally wrote your an email to your work account

Privacy laws have never defended against stupidity.

If you accidentally mailed your Viagra to your neighbors should they be required not to disclose this information?

Re:Wait, what? (1)

0racle (667029) | more than 5 years ago | (#28143661)

You're not supposed to use company equipment (yes this includes the phone) for personal use. Don't treat things that aren't yours as if they were. You do give up any privacy when you do, your web usage is probably recorded, your phone calls can be logged and yes, they would have the right to record every conversation.

Re:Wait, what? (1)

hob42 (41735) | more than 5 years ago | (#28144231)

My employer (a hospital) has a clear policy: As long as you are not on the clock, and you do not violate any laws, you may use the computer, internet, telephone, etc for personal use. I am writing this during my lunch time, for example.

And yes, the policy also states any such use can be monitored and revoked.

Re:Wait, what? (1)

MobyDisk (75490) | more than 5 years ago | (#28143871)

Most companies specifically forbid you from using office tools for such purpose. And any company I have ever worked for was very clear that any such use was subject to monitoring, which is completely reasonable and logical.

You are way off if you think you can come into a corporate office and make personal calls with any expectation of privacy.

i would assume if my job was ever terminated people wouldn't go through my browser's history and look at all the cookies generated unless it was directly related to my work.

That's a terrible assumption. You should assume the super-opposite: that not only would that do that upon your termination, but that someone is probably assigned to do this periodically for all employees. There may even be an automated tool taking note that I post on Slashdot right now.

Re:Wait, what? (1)

Red Flayer (890720) | more than 5 years ago | (#28144165)

It's the property of his employer, and, unlike a case where he would be leasing it, and thereby be able to claim some contractual ownership rights, in this case it is clearly their property.Please note that this was not a settled issue at the time. There is some expectation of privacy for communications even on work systems -- even in the US (in Europe, IIRC, that expectation is law). Where the expectation of privacy is gone is when the employee is explicitly informed that communications are the property of the employer, as almost all companies do now.

Bigger question than her tech positions (1, Flamebait)

jmorris42 (1458) | more than 5 years ago | (#28143387)

Larry Summers was driven from polite society for a couple of years for the crime of asking whether it was desirable to broach the subject of whether there were basic differences between men and women. This bigot stands up and asserts there are fundamental differences between both the genders AND races[1] as if it were a settled fact and is on a fast track to the Supreme Court.

Just proves I really don't understand the progressive mind. I really wish you guys could settle what the rules are in such a way you could actually enumerate them in public. Which of course is exactly what will never happen because to speak them would give up the game as any sane person could only laugh.

[1] As a member of La Raza (The Race) and a good ivy league educated feminist she of course asserted that a latina is inherently superior to a white male.

Re:Bigger question than her tech positions (0)

Anonymous Coward | more than 5 years ago | (#28143459)

The rule is that Lefty gets to say whatever is convenient at the time

Re:Bigger question than her tech positions (3, Insightful)

morgan_greywolf (835522) | more than 5 years ago | (#28143501)

Just proves I really don't understand the progressive mind. I really wish you guys could settle what the rules are in such a way you could actually enumerate them in public. Which of course is exactly what will never happen because to speak them would give up the game as any sane person could only laugh.

Racist and sexist speech are politically incorrect, but only when the speaker is white and male. All others may proceed with their bigotted remarks; often these are deemed to be funny.

Re:Bigger question than her tech positions (0)

Anonymous Coward | more than 5 years ago | (#28143613)

Racism is okay as long as it's benevolent.

Democrats say that Republicans need to be cautious about Sotomayor or risk alienating the Hispanic population. Apparently they think all Hispanics think alike. If it's not racist, it's certainly asinine.

Re:Bigger question than her tech positions (4, Insightful)

timeOday (582209) | more than 5 years ago | (#28143703)

Probably because it's the majority group that generally has the power in society to enforce prejudices by denying housing, voting rights, employment, etc.

Anyways, I would like to know if she is actually racist, as evidenced by the rulings she has made? So far all I have heard is one or two statements from a talk (not a legal proceeding) a number of years ago. It's silly to base one's opinion on that, when she has gone "on the record" through her rulings countless times. If she has made racist rulings, then we don't need her on the bench.

Speeches shouldnt be held against you? (0)

Anonymous Coward | more than 5 years ago | (#28143877)

If she gave a take where she said "The jews control the media and the banks", I can guarantee that you and other pavlovian dogs would have had her skinned alive whether it was a legal proceeding or not.

I want a judge who follows and respects the law, I want a neutral interpretation of it.

I think that whites often come to better conclusions when they are faced with difficult questions of ethics than either blacks or latinos.
How do you feel about that comment?
Would you allow me to hold high office?

it depends on who says what and their sex and race, NOT WHAT you say.

Re:Bigger question than her tech positions (1)

lgw (121541) | more than 5 years ago | (#28143927)

The ruling she made on the firefighters claim that they were denied promotions because they were white looked blatantly racist to me. She's been rebuked by other federal judges for the quality of her rulings when the cases involded race. Of course, she seems to be criticized often for most aspects of here work, so this isn't conclusive, but it's a really bad sign.

Re:Bigger question than her tech positions (3, Insightful)

hardburn (141468) | more than 5 years ago | (#28144177)

She did not rule to deny the promotions regardless of the test results. She ruled that the city had the right to throw out the test results if they so choose.

Re:Bigger question than her tech positions (1)

bagorange (1531625) | more than 5 years ago | (#28143709)

right on brother. Except she did not assert superiority. It struck me as an odd thing to say, but her statement did not assert superiority.

The university professor (?) who raised the issue of differences between men and women shouldn't have been hounded from his job. In much the same way that this single sentence (whose context I have not read) shouldn't preclude this judge from nomination.

Moving along, how about that highly suspicious way she pronounces her family name? Shouldn't she be calling herself Jane Smith if she wants a job in a nice clean white protestant country?

Re:Bigger question than her tech positions (2, Interesting)

Etrias (1121031) | more than 5 years ago | (#28143953)

By "this bigot", I assume you are referring to Sotomayor? By calling her a bigot, I assume that you are referring to her comment about Latinos which has become the rallying cry of conservatives saying she's unqualified because she's "racist"?

Here's the thing I don't understand about some people (I'm just going to use your comment because it so perfectly illustrates my thought). In one way, you get smug about your obvious conservative position (highly likely that you tell people that you're not really conservative, but rather libertarian) and say that you want the other side to define their position, then immediately dismiss it as being ridiculous.

Internet society has allowed us to create our own echo-chambers, listening over and over again to "your side" and dismissing the other side as just wrong--never really hearing the other side, just straight dismissal. And it is easy in this day and age to do so. Instead of being in a society and a community where you every day experience and deal with opposing opinions, we voluntarily shut ourselves out. It's easier to dismiss people who you don't agree with. I don't understand how we can get past this where people like you who have made up your mind will listen to others of opposing views.

Public figures face enormous scrutiny, expanding by leaps and bounds every year as recordings seem ubiquitous and YouTube makes it easy to post anything. How well would you do in today's society? I wouldn't likely do well. I would rather look at her opinions and judge from there. That, after all, is what is important in this case.

Anyway, this is just a rant and I'll probably get modded down for off-topic or worse. I just don't see how we go forward in a society when we refuse to listen to someone you don't agree with.

citation please (1)

Reality Master 201 (578873) | more than 5 years ago | (#28144153)

of course asserted that a latina is inherently superior to a white male.

Please, I'd love to see where she asserted this - provide the quote along with it's context, just so we can see if you're distorting stuff for political reasons.

That's what she said (2, Insightful)

Bobb Sledd (307434) | more than 5 years ago | (#28143401)

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life."

-Judge Sonia Sotomayor

I'm no expert, and usually the last to cry "racist!", but that sounds pretty racially-biased to me.

Re:That's what she said (2, Insightful)

Anonymous Coward | more than 5 years ago | (#28143495)

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life."

-Judge Sonia Sotomayor

I'm no expert, and usually the last to cry "racist!", but that sounds pretty racially-biased to me.

Actually, that quote seems to be refuting the idea that race/sex has anything to do with it. She is saying that wisdom+experience wins over non, regardless of sex+race affiliation...

Re:That's what she said (4, Insightful)

whiledo (1515553) | more than 5 years ago | (#28143519)

The key part of the phrase here is who hasn't lived that life. That's the context.

Now there's an understandable difference of opinion on whether the statement about reaching a "better" conclusion based on experiences similar to the plaintiff/defendant is valid, but I don't think it's racially biased in the sense of "race X is better than race Y."

Re:That's what she said (1, Troll)

Bobb Sledd (307434) | more than 5 years ago | (#28143755)

Well, 60% of her decisions have been overturned... some by the Supreme Court Justices she will join... so...

I'm just pointing out that it's a whacky thing for a judge to say. And that's not the only thing:

"I'm not supposed to say this but guess what? We legislate from the bench. Oops, I'm being recorded, I shouldn't say that."

C'mon, really?

Re:That's what she said (5, Insightful)

Thyrsus (13292) | more than 5 years ago | (#28143991)

The 60% figure is bogus. Of the thousands of decisions she's made, only 5 have been taken up by the Supreme Court, and of those 3 were reversed, one affirmed and one has not yet been decided. That is similar to the outcome for most appeals court judge decisions: thousands are never taken up by the Supreme court, 70% of those which are taken up are reversed, and 30% of those which are taken up are affirmed. The Supreme Court only looks at cases it seems likely to reverse. Appeals court judges decide the vast majority of cases in the same way the Supreme Court would, so the Supreme Court doesn't say anything about them, letting them stand. The vast majority of the time, the system works.

Wrong, 60% figure totally meaningless (5, Informative)

SuperKendall (25149) | more than 5 years ago | (#28144043)

Well, 60% of her decisions have been overturned... some by the Supreme Court Justices she will join... so...

That figure is dramatically incorrect - read Powerline's [powerlineblog.com] take on this, certainly no friend of hers. An excerpt:

"It relates only to Sotomayor's decisions as to which a petition for a writ of certiorari was granted by the Supreme Court--a total of only five. (The overwhelming majority of such petitions are denied.) Of the five cases in which the Supreme Court granted the writ of certiorari, it reversed three. Not only is this a ridiculously small sample, the overall rate of reversal of cases in which the Supreme Court grants cert appears to be around 70 percent."

Even if you do not approve of her (I myself am neutral) that's not a good figure to quote.

Re:That's what she said (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#28144233)

"Legislating from the bench" is part of our jurisprudence; it's called the common law. If you don't like a rich, long history of a judicial rulings then I'm afraid to inform you that it's possible that you are not a red-blooded American. ZING!

Love it or leave it? Good luck in your new home country.

Re:That's what she said (4, Insightful)

scubamage (727538) | more than 5 years ago | (#28143779)

I agree with her statement. You expect a rich white man who lives in the Hamptons or Bel Air, and spends his days doing nothing but politicking and playing golf to be able to hand down a just sentence on someone who comes from a completely different part of society? You expect him to fairly judge someone who is starving, homeless, and steals a loaf of bread, and (I shudder at the thought) some baby formula? He has no context or even a remote claim to empathy with that person. He exists completely outside that part of the world and society.

You expect him to be suited for telling a young woman that she has to bear the child of a man who raped her, despite never being in a situation where someone he knew/loved was raped? This is a very real possibility for this judge to have to face.

He'd be fine for passing sentences on white collar offenders, but for those who live in the ghettos, someone from the ghettos will be better suited.

Re:That's what she said (2, Insightful)

courtjester801 (1415457) | more than 5 years ago | (#28143929)

On the inverse, would you expect someone starving, homeless, and bearing a child after being raped to fairly judge someone not in that circumstance? Life experiences don't mean squat when it comes to the bench. What experiences I have in life shouldn't matter if I'm called to make a judical call on someone else; it's based on law, not feelings.

Re:That's what she said (3, Insightful)

Naturalis Philosopho (1160697) | more than 5 years ago | (#28143539)

"...than a white male who hasn't lived that life"

It's called a dependent clause. Learn about it, says a white male (me). I've seen extreme poverty, I've lived around it, and therefore I have some understandings of it. But I don't know it the way someone who's lived it does. And I have no clue what it must be like to grow up as a female. Repeat after me, "I don't know everything."

Re:That's what she said (1)

Bobb Sledd (307434) | more than 5 years ago | (#28143639)

Correct, but if you read the whole speech she is saying that her experiences and culture will bias her judgement, whether she wants it to or not. I tend to disagree with this ideal; if you can't be impartial and disconnect yourself from your own experiences, then maybe you shouldn't be a Supreme Court Justice.

Re:That's what she said (3, Insightful)

OverlyGenericUsernam (1189255) | more than 5 years ago | (#28143723)

To be able to do that, you wouldn't be human.

Re:That's what she said (1)

whiledo (1515553) | more than 5 years ago | (#28143745)

I understand where you're coming from and it is a fair point. However, the Supreme Court often has to decide on constitutional issues that go back to equality and freedom. For someone who hasn't experienced racism or sexism, their opinion on how a given action affects the equality and freedom of a person is simply different than a person who has experienced those two things. It's a "soft" issue and one that you can't quantify impartially and objectively.

Now, that doesn't mean you should look for racism and sexism where it doesn't exist. But I don't think that's the issue here.

Re:That's what she said (1)

causality (777677) | more than 5 years ago | (#28144073)

I understand where you're coming from and it is a fair point. However, the Supreme Court often has to decide on constitutional issues that go back to equality and freedom. For someone who hasn't experienced racism or sexism, their opinion on how a given action affects the equality and freedom of a person is simply different than a person who has experienced those two things. It's a "soft" issue and one that you can't quantify impartially and objectively.

Now, that doesn't mean you should look for racism and sexism where it doesn't exist. But I don't think that's the issue here.

Constitutional issues aren't so hard. They boil down to this: what part of "shall not be infringed" is difficult to understand? The rest is pretty simple, too. The Founders talked about "papers and effects" and in the digital age, that also includes things like hard drives and e-mails and there is no honest reason to presume otherwise. I know that sounds facetious but I assure you, it can be that simple. It's just that there are multiple vested interests who need all of the unnecessary complexity in order to have any semblance of a valid argument.

Re:That's what she said (1)

sweatyboatman (457800) | more than 5 years ago | (#28143935)

We're all biased by our experiences, it's called the human condition. The Supreme Court handles cases where justice cannot be objectively determined.

For example is gun ownership a good thing for society or a bad thing for society? Abortion? Gay marriage? Torturing terrorists?

Is the constitution a flexible, living document into which we can read much or is it literal, limited only to the context in which its authors lived?

Intelligent people differ on the answer to all these questions (and many more). Not because they haven't had all the facts, but because their life experiences bias them to one side of each issue or another.

Usually I think David Brooks is an asshat, but today's opinion piece in the NY Times [nytimes.com] is pretty insightful on this subject.

Re:That's what she said (5, Informative)

sesshomaru (173381) | more than 5 years ago | (#28143577)


Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
http://www.brianmclaren.net [brianmclaren.net]

Mod parent up (5, Insightful)

Reality Master 201 (578873) | more than 5 years ago | (#28143789)

Context matters, and if you pay attention to everything she said, it's not really racist at all.

Sadly, complex thoughts and context don't seem to fare well in the minds of many people these days - maybe it's because they don't make for quick, easy to digest sound bites.

Re:That's what she said (4, Insightful)

MozeeToby (1163751) | more than 5 years ago | (#28143627)

I believe what she's trying to put across here is that a person who grew up as a poor minority woman is more likely to reach a fair conclusion than an old money white male would. Specifically, I think she's referring here to questions about those issues: poverty and discrimination.

It's equivalent to saying "I think an IT expert turned judge would be more likely to reach a fair decision in technology cases than an a judge that doesn't know how to send email would".

Re:That's what she said (0)

Anonymous Coward | more than 5 years ago | (#28143693)

The only part of life's experiences that make you a good judge is knowledge of the law. Period. That's it. That's all there is to it. Nothing more. I don't give a damn if the judge I'm appearing before is from my home town, or belongs to the same club, or has a surname from the same ancestral land. I care only that he or she knows the law. If I'm bringing a just case before the court, that's all I need to prevail. If I'm a con artist, yeah, I suppose that having an "inside connection" might help. That's not the kind of judge I want.

Re:That's what she said (1)

tonyreadsnews (1134939) | more than 5 years ago | (#28144071)

Right, because law is word so well that there is no ambiguity or variation and there is absolutely no interpretation done. Heck we might as well hire monkeys who can type into a computer to pull up the exact law that decides each case every time. No need for anyone with any experience or anything.

At least read the surrounding text where the quote was taken. If then you still feel she's biased beyond credibility so be it, but don't take the media's word for it. Of course they wouldn't blow it up to sell papers or ads... http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?_r=2&pagewanted=print [nytimes.com]

Re:That's what she said (0)

Anonymous Coward | more than 5 years ago | (#28144087)

Since the law is not ambiguous, I guess we don't need a hierarchy of courts, then. Why do we even bother with the Supreme Court?

Yep, that's rasism. (1)

SuperKendall (25149) | more than 5 years ago | (#28144103)

I believe what she's trying to put across here is that a person who grew up as a poor minority woman is more likely to reach a fair conclusion than an old money white male would.

Indeed she was trying to say exactly that, and that is exactly bullshit.

How can you presume to know what experiences even someone who grew up around money had? Perhaps they had parents who forced them to toil, or by other means still instilled an excellent value of fairness. Do you not think even people with money face many of the same life challenges that all humans face over the course of growing up?

Anytime you start saying "old white rich guys are all like X" you are a racist stereotyper and no better than the KKK claiming all non Aryans are inferior. It's just that you are proclaiming poor people are the master race because they are theonly ones with the ability to be "fair" which in itself is a bullshit unmeasurable quantity. Absurd.

Re:That's what she said (1)

debrisslider (442639) | more than 5 years ago | (#28143815)

Why don't you look at that quote in context? [nytimes.com]

More specifically, here is the relevant section:

That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Specifically, she is talking about female/minority judges bringing an additional context to a decision, informed by their life experiences, that a (rich/white/male/privileged) person's life experience would necessarily preclude them from having. Which I don't think is a racist point; her early life's biography is significantly different than the rest of the Supremes, or in the case of this speech, the average federal circuit court's experience. Now, if you follow the sort of politics that call any instance of drawing attention to differences 'racist,' then I suppose that quote fits the description, but it is really more appropriate and closer to the spirit of the speech to look at it as part of a larger discussion acknowledging the effects of bias, of both white male and minority female. Whether or not you agree with her argument that these backgrounds/traits will produce 'better' decisions is a valid point of contention, but in the specific area she's talking about, of cases and laws principally concerned with minority and gender, it isn't totally unreasonable to suggest that a member of the specific group might have a greater insight into the issues and arguments surrounding the case - or, to use a non-value judgment, a unique perspective that can add shades of grey to what might be otherwise construed into a more black-and-white (no pun intended) discussion.

And that is a big problem for a lawyer/judge (1)

SuperKendall (25149) | more than 5 years ago | (#28144147)

there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging

Except there is, it's called the law, and often it's very clear. If you choose to toss objectivity out you may as well toss out all the laws as well.

Sometimes things are not clear, but to say "there is no objective stance" is very scary coming from someone presuming to be a judge upholding the constitution as written and amended.

Re:That's what she said (4, Informative)

0xdeadbeef (28836) | more than 5 years ago | (#28143937)

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge presiding over cases on the violation of civil rights by discrimination based on race or sex] than a white male who hasn't lived that life.

If you're going to insert your own words into a quotation, insert the proper context.

Re:That's what she said (1)

Fantom42 (174630) | more than 5 years ago | (#28143981)

There is a rather informative piece on CNN of all places that talks about this comment.

http://www.cnn.com/2009/POLITICS/05/28/ifill.sotomayor/index.html [cnn.com]

Her comments were part of a speech that discussed the ideal of impartiality and how it is an elusive goal. She was referring to a particularly bad decision made by Judge Oliver Wendell Holmes. In practice, judges from different walks of life will have different ways of seeing the world, which will, as much as they try for it not to, influence their judgment.

The context in which a comment made affects its meaning. In this case, she was not arguing that Latino women were superior, but that a diversity of viewpoints often positively influences the quality of judgements rendered.

Re:That's what she said (1)

2short (466733) | more than 5 years ago | (#28144225)



A) Read the whole speech that line is pulled from, and your opinion of what she is saying might be different. I'm not telling you what to believe, but I read the whole speech, and I don't think that statement means what you think it means. Most people don't engineer every statement they make to sound reasonable entirely divorced from what else they are saying. Having been told you ought to read the whole thing, please refrain from calling anyone racist until you have, unless you want to just admit (to yourself at least) that you don't care if you're right.

B) For those in the audience who have read the whole speech: Obviously she was being more nuanced than the quote out of context would imply, but am I the only one that reads that line as funny? Her hope that a Latina woman might be a better Judge than someone else sounds roughly analogous to my hope that a geeky programmer might be a better lover than someone else. That line ends a whole speech about how while our experiences obviously and inescapably affect our judgment, Judges must do their utmost to set aside prejudices and reach correct conclusions. And then at the end she says that gee, if some sorts of experiences do make one a better or worse judge, she hopes being a latina woman makes you a better one. Ha-ha-ha?

scroll down (1, Troll)

Lord Ender (156273) | more than 5 years ago | (#28143433)

Claiming you shouldn't be expected to read the parts of a contract you need to scroll to see is about like claiming you shouldn't be expected to read anything other than page 1 when reviewing a paper document.

Re:scroll down (0)

Anonymous Coward | more than 5 years ago | (#28143553)

From what I understood, the issue was that the terms weren't visible at all until you scrolled down and clicked on the link.

To use a non computer comparison

It's more like one side saying "No, there is no contract hiding behind my back that you explicitly agree to by shaking my other hand"

Re:scroll down (1)

eln (21727) | more than 5 years ago | (#28143631)

Only if there was an arrow on top of your head with the word "Contract!" written on it pointing at your other hand.

On the face of it, the ruling seems incorrect. However, I'm not familiar with all the details of it. Also, the ruling happened in 2002. We can assume she has become more familiar with the Internet since then. It would be interesting to hear her take on that ruling today.

Re:scroll down (1)

snl2587 (1177409) | more than 5 years ago | (#28143579)

is about like claiming you shouldn't be expected to read anything other than page 1 when reviewing a paper document.

Isn't that the standard in upper management?

Re:scroll down (5, Informative)

_xeno_ (155264) | more than 5 years ago | (#28143725)

Read the linked decision - this didn't say that you don't have to read past Page 1, it said that only informing the user of the existence of licensing terms if they scroll to the very bottom of the page doesn't make the terms binding.

Essentially, if the plugin installer used a "clickwrap" license - as explicitly stated by Sotomayor in a footnote - it could have been binding.

But instead, there was a single sentence at the bottom of the page: "Please review and agree to the terms of the Netscape SmartDownload software license agreement before downloading and using the software." Installing the plugin didn't show the license, and if you didn't scroll down past the download button, you wouldn't see anything about the license.

You should read the ruling [bna.com] , it seems pretty clear to me that Sotomayor did indeed know what she's talking about and came to the correct decision.

Re:scroll down (1)

Todd Knarr (15451) | more than 5 years ago | (#28143735)

That depends on the context. In commercial law deals with retail consumers get treated differently than deals between businesses, for instance. In a B2B transaction both sides are expected to be experienced at this and have lawyers around to check the details, but a consumer's held to a lower standard and the onus is on the business to point out anything unusual about the deal. If the business doesn't bring something to the consumer's attention, then the standard is whether an ordinary consumer (not a lawyer or a businessman engaged in that trade) would expect that something. This comes up in commercial law involving the UCC and retail transactions, I've heard it referred to as the "quacks like a duck" clause ("If it walks like a duck and quacks like a duck, a consumer's entitled to assume it is a duck unless you get them to agree otherwise beforehand.").

Re:scroll down (1)

2short (466733) | more than 5 years ago | (#28143801)

There's a "terms of service" link at the bottom of this page. Did you click it and review the contents before making your post? If you look now and it says you've agreed to something objectionable, will you feel bound?

Whistles and pops (0, Offtopic)

whiledo (1515553) | more than 5 years ago | (#28143461)

I hope she understands "cyberlaw" better than I understood anything but the last line of that summary...

Overturned? (1, Informative)

icebike (68054) | more than 5 years ago | (#28143573)

60% of her decisions that were appealed to the Supreme court were overturned. Was this one of them?

Re:Overturned? (5, Informative)

staeiou (839695) | more than 5 years ago | (#28143683)

60% of her decisions that were appealed to the Supreme court were overturned. Was this one of them?

The Supreme Court overturned 68% of all cases it decided to hear last year (and 74% the year before that!), so she actually is below average in terms of reversals. But you're confusing appealed with heard - every decision gets appealed to the Supreme Court, if the client still has money to pay for the lawyer. She only had 1.2% of her decisions overturned, which is a far lower figure.

Source: Newsweek http://www.newsweek.com/id/199955 [newsweek.com]

Re:Overturned? (-1, Flamebait)

icebike (68054) | more than 5 years ago | (#28143729)

> She only had 1.2% of her decisions overturned, which is a far lower figure.

Which by your own admission means she rules against poor the appellate most of the time......

Re:Overturned? (3, Funny)

Kozz (7764) | more than 5 years ago | (#28143765)

Hush! You're cluttering the emotional, reactionary and contrarian arguments with the facts!

Re:Overturned? (1)

XxtraLarGe (551297) | more than 5 years ago | (#28143829)

60% of her decisions that were appealed to the Supreme court were overturned. Was this one of them?

I'm not taking sides, but it should be mentioned that the Supreme Court doesn't always make the right decision either. They're all political appointees who seldom fail to please their core constituencies.

Re:Overturned? (1)

icebike (68054) | more than 5 years ago | (#28144061)

But I thought they should have no "core constituencies". Isn't that the point?

Big Lie (2, Informative)

Estanislao Martnez (203477) | more than 5 years ago | (#28143923)

60% of her decisions that were appealed to the Supreme court were overturned.

This statistic is a big lie, in that it fails to put the number in a correct context; see this article [usnews.com] .

So yes, 60% of her decisions that the Supreme Court reviewed were overturned. The problems are:

  1. that 60% comes out to 3 out of 5, literally;
  2. 60% is actually a below average rate of overturns of reviewed cases;
  3. the 60% figure doesn't count decisions of hers that the SCOTUS declined to review (and thus allowed to stand);
  4. the statistic used would count a 9-0 overturn the same way as a 5-4 overturn, when they just don't mean the same thing.

Another First (0)

Anonymous Coward | more than 5 years ago | (#28143595)

Not only is she the first hispanic justice, she's the first hispanic cyber-justice. And with all of her self-described Puerto Rican female intuition, it will be cyber hell for those cyber litigants who appear before her.

First Judge That Has Made Any Sense (5, Funny)

Fantom42 (174630) | more than 5 years ago | (#28143707)

This is the first judge (featured on Slashdot) who I've read that has written opinions that made a lick of sense.

Wow.

License, not Contract (2, Interesting)

Thyrsus (13292) | more than 5 years ago | (#28143759)

From a quick reading of the decision, this was a license *not* a contract. And instead of making people click an "I Agree" button, the license link was non-obviously tucked away. The defendants did not present sufficient reason to overturn the lower court ruling. In my non-lawyer opinion: ggod decision.

She has no respect for private property (2, Interesting)

MalleusEBHC (597600) | more than 5 years ago | (#28143919)

It's not tech related, but everyone should read up on her Didden v Port Chester case. I used to think Kelo v New London was the most disgusting eminent domain ruling, but Didden puts it to shame.

Don't like her - bitch hates guns. (0, Flamebait)

Anonymous Coward | more than 5 years ago | (#28144027)

Does she have any other qualifications besides having a vagina and being a minority?
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