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Supreme Court to Hear Potentially Important Property Rights Case:

On Monday, the Supreme Court granted writ of certiorari in Alvarez v. Smith, a potentially important case that underscores the dangerously weak state of protection for constitutional property rights, which I described in this recent article.

In Alvarez, a Seventh Circuit Court of Appeals panel that included Judge Richard Posner invalidated a section of the Illinois Drug Asset Forfeiture Procedure Act that allows the police to seize property that they have probable cause to believe was involved in a drug-related crime and hold onto it for up to 187 days without filing any kind of action for asset forfeiture in the courts. This rule applies even to property owned by persons who are entirely innocent of any wrongdoing, and who simply found their possessions caught up in a drug investigation through no fault of their own (e.g. - if someone else used their car to transport illegal drugs without their knowledge). The authorities also don't have to prove that keeping the property is necessary in order to prevent the loss of valuable evidence.

In other words, DAFPA authorizes the government to take away the valuable property of completely innocent people for up to six months at a time, without giving the owner any opportunity to contest the seizure whatsoever. The 187 day time limit applies to any personal property worth less than $20,000, which of course includes most cars. And note that even after an asset forfeiture action is filed, many more months might pass before the court actually hears the case. In this case, three of the six plaintiffs' cars were held by the police for many months without any judicial hearing (in two cases for over a year), even though none of the three were ever charged with any crime. The Seventh Circuit ruled that such practices sanctioned by DAFPA violate the property owners' due process rights.

Under the Due Process Clause of the Fourteenth Amendment, this should be an easy case. The Clause requires that states must not "deprive any person of life, liberty, or property, without due process of law." One can certainly argue about how much process is "due" in any given situation, and many lawyers make their living doing just that. But surely it is a violation of the Clause for the state to deprive an innocent citizen of valuable property for many months without any judicial process whatsoever. That is especially true if the deprivation imposes a substantial burden on the property owner, as is often the case when the property seized is a car. Perhaps little or no process should be required for a very small deprivation of property; but surely more is "due" when the owner suffers serious harm as a result of the government's seizure of his possessions. As the Seventh Circuit opinion puts it:

[T]he procedures set out in DAFPA show insufficient concern for the due process right of the plaintiffs....

The private interest involved, particularly in the seizure of an automobile, is great. Our society is, for good or not, highly dependent on the automobile. The hardship posed by the loss of one's means of transportation, even in a city like Chicago, with a well-developed mass transportation system, is hard to calculate. It can result in missed doctor's appointments, missed school, and perhaps most significant of all, loss of employment. This is bad enough for an owner of an automobile, who is herself accused of a crime giving rise to the seizure. But consider the owner of an automobile which is seized because the driver—not the owner—is the one accused and whose actions cause the seizure. The innocent owner can be without his car for months or years without a means to contest the seizure or even to post a bond to obtain its release. It is hard to see any reason why an automobile, not needed as evidence, should not be released with a bond or an order forbidding its disposal....

On the other hand, we recognize the City's interest in being certain that a vehicle is not destroyed before a court can issue a judgment in the forfeiture proceedings. We also understand that the preforfeiture hearing would impose some administrative burden on the City. However, due process always imposes some burden on a governing entity. We are not contemplating protracted proceedings, but rather notice to the owner of the property and a chance, perhaps rather informal, to show that the property should be released.

Note that the Seventh Circuit does not hold that such property seizures are categorically forbidden, or even that they can only be undertaken after an in-depth judicial hearing. The court ruled only that the property owner must be given "notice" of the seizure and a fairly minimal opportunity to present evidence showing that there is no need for the authorities to deprive her of her property. The fact that such minimal enforcement of constitutional property rights remains controversial is a strong indication of the second-class status of property rights under current jurisprudence.

Of course we don't yet know why the Supreme Court decided to hear this case. It could be that they want to affirm the Seventh Circuit decision. However, it is rare for the Court to grant cert. simply to endorse a lower court opinion (though it sometimes does so in order to resolve a circuit split, which may exist here). Alternatively, the Supremes could affirm the Seventh Circuit ruling, but apply a different analytical framework to justify that result. However, given the recent record of the Court in property rights and suspects' rights cases, and the general fact that the Supremes are more likely to hear a case to reverse the lower court than to affirm, I think it quite possible that they will end up stripping property owners of even the minimal due process protections required by the Seventh Circuit opinion. The "question presented" endorsed by the Court in its grant of certiorari clearly focuses on the issue of whether the owners are entitled to any kind of hearing at all, not just on the precise nature of that hearing.

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Obama Chooses Sonia Sotomayor.

Cable news networks are reporting that President Obama has chosen to nominate Sonia Sotomayor for the US Supreme Court.

I hope to learn more about Sotomayor before expressing a strong personal opinion on the choice, but my initial impresion is this: Compared to recent nominees, Sotomayor is a far more distinguished choice than was Harriet Miers (whom I opposed), but a less distinguished choice than John Roberts — and probably Samuel Alito as well.

I expect Sotomayor to be confirmed, but without too much enthusuasm, except in a few pockets of the Democratic coalition.


The Sotomayor Pick:

I am not yet sure what position to take on President Obama's selection of Sonia Sotomayor. My general sense is that she is very liberal, and thus likely to take what I consider to be mistaken positions on many major constitutional law issues. I am also not favorably impressed with her notorious statement 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." Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins. Stuart Taylor's comments on Sotomayor's speech are telling:

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life" — and had proceeded to speak of "inherent physiological or cultural differences."

Of course it is inevitable that personal background will influence judicial decisionmaking to some degree. Sotomayor is right to imply that it often had a negative effect on the decisions of white male judges in the past. But there is a difference between recognizing an inevitable source of bias while striving to constrain it and actually embracing it. I much prefer a jurist who strives to get beyond his or her ethnicity in making decisions than one who rejects the view that "judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law" and instead believes that we should embrace the fact that "our gender and national origins may and will make a difference in our judging."

On the plus side, Sotomayor does meet the minimal professional qualifications for nomination to the Supreme Court. Her ten years of solid service on the Second Circuit Court of Appeals ensures that. At the same time, her record is far less impressive than that of most other recent nominees, such as Roberts, Alito, Breyer, and Ginsburg. Each of these was a far more prominent and better-respected jurist than Sotomayor, and Breyer and Ginsburg were leaders in the development of their respective fields of law. Sotomayor also seems far less impressive than Diane Wood and Elena Kagan, reputedly her top rivals for this nomination. The current nominee's qualifications are likely better than Harriet Miers' were; but Miers' nomination failed in large part because of her relatively weak resume. Among the current justices, probably only David Souter and Clarence Thomas had professional qualifications similar to or worse than Sotomayor's. That said, Supreme Court appointments are almost never purely merit based. Sotomayor joins a long line of nominees who were chosen in part because of political, ethnic, or gender considerations. It would probably be wrong to oppose her on that ground alone.

Finally, this may be a good time to remind readers that I have long argued that judicial philosophy and ideology are legitimate considerations for senators to take account of in deciding whether or not to oppose a Supreme Court nominee. Unlike some on the right, I took that view during the Bush Administration, and I hold the same position today. On that point, I agree with Barack Obama, who opposed John Roberts' nomination based on his judicial philosophy despite conceding that "[t]here is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge." Obama was, in my view, wrong in his specific objections to Roberts, but absolutely right in concluding that judicial philosophy should be considered in addition to professional qualifications when assessing judicial nominees.

UPDATE: Some commenters understandably question whether Sotomayor's credentials are really worse than Alito's were. Both of them spent comparable amounts of time as judges on a circuit court, and both had similar educational credentials at elite institutions. In addition, this post by Eric Posner (relying on methodology developed in this article by Stephen Choi and Mitu Gulati), shows that Alito's opinions and Sotomayor's have similar citation counts.

Nonetheless, I think that Alito's record is on the whole better than Sotomayor's was. In their composite ranking of federal circuit court judges (incorporating measures of quantity of output, quality, and "independence"), Choi and Gulati ranked Alito 16th out of 98 judges included in the study. Sotomayor was not included for technical reasons, but Eric reports that she would have ranked in "the bottom half." Eric cites data showing that Sotomayor's opinions are cited slightly more frequently than Alito's in court decisions and law reviews. But that difference is almost surely due to the fact that Second Circuit opinions are generally cited more frequently than Third Circuit ones (in large part because the Second Circuit includes New York City, which is the nation's most important center for commercial litigation and many types of white collar criminal litigation). I also base my view in part on a qualitative judgement. For years prior to his appointment, I often heard legal scholars and other experts describe Alito as one of the top conservative circuit court judges. Prior to her appointment, I rarely if ever heard Sotomayor described as one of the top liberal ones.

I may have been wrong in suggesting that Alito's preappointment record was "far" more impressive than Sotomayor's. But I still do think that he had a significant edge. That said, I reiterate my view that Sotomayor's credentials are good enough that she should not be rejected on qualifications grounds. The real objection to her is based on judicial philosophy.

UPDATE #2: It should be noted that Sotomayor put "I would hope that" immediately prior to her statement that a "wise Latina" judge would generally make better decisions than a white male one. I don't think that the "I would hope" materially changes anything in a context where it's pretty clear that she thinks that the hope is justified. After all, the statement comes in a paragraph criticizing Justice Sandra Day O'Connor's reputed view that "a wise old man and wise old woman will reach the same conclusion in deciding cases." Sotomayor's comment would not be a meaningful criticism of O'Connor's unless Sotomayor thought that the wise Latina judge really was likely to do better than a white male "more often than not."

UPDATE #3: In a more recent post (published several days after this one), Eric Posner presents new data showing that Sotomayor's recent record stacks up well against Alito's by various quantitative measures. I won't go into the details here, but on balance I think that Eric's conclusion is correct. Therefore, it can no longer be said that the quantitative data show that Alito had a "substantial edge" over Sotomayor. As I stated in the original post, my reservations about Sotomayor are primarily focused on her judicial philosophy and decisions rather than on competence. Even so, it's important to recognize that new evidence reveals that my original judgment that her record was less impressive than Alito's was probably wrong.

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Would Sotomayor be the First Hispanic Justice?

It's possible that the answer to this question is "no." Justice Benjamin Cardozo was a descendant of Spanish or Portuguese Jews who immigrated to America, and took great pride in his Sephardic Jewish identity. For details, see Andrew Kaufman's excellent biography of Cardozo.

That said, ethnic identity is largely a social construct. So I can understand if Hispanics today take special pride in Sotomayor's appointment because she would be the first justice whose parents were recent arrivals from Latin America. Like many racial or ethnic classifications, "Hispanic" is a somewhat arbitrary label. It includes widely divergent groups such as Brazilians and Mexicans, while sometimes being used in a way that excludes Spanish and Portuguese immigrants and their descendants (including Cardozo). That does not mean, however, that the term is completely incoherent. US Hispanics do have a distinct identity of sorts - even if only because American society has historically defined them as such over the last several decades.

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Justice Cardozo as "Hispanic" or "Latino":

The discussion prompts me to reprise a couple of items I posted in the very first month of this blog on the subject:

1. Note Justice Cardozo's Hispanic surname, a traditional way of testing Hispanic status; actually, I think the name is Portuguese, but if it's good enough for the U.S. government, it's good enough for me: Title 49, section 26.5 of the Code of Federal Regulations (the definition that's used in the contracting race preference programs administered by the Department of Transportation) defines "Hispanic Americans" as

persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race.

There's no doubt, to my knowledge, that Cardozo was indeed of Spanish or Portuguese origin; in fact, a recent biography describes the shaping experiences of Cardozo;s youth as including participation in a leading Spanish-Portuguese cultural organization. True, his family probably left the Iberian Peninsula over 350 years before his birth, but that's true of many Hispanics as well. And he likely had no American Indian blood, but that's true of many Hispanics, too.

At the same time, I can certainly understand both why many Hispanics would be enthusiastic about having a Hispanic appointed to the Court, and why they wouldn't count Cardozo as one of them: Ethnicity tends to be defined in practice by felt cultural bonds, and not by Code of Federal Regulations definitions.

2. My friend Tom Waldman asked whether Cardozo might not qualify as Latino (as opposed to Ladino, I take it).

But that presupposes a definition of Latino that's different from Hispanic, and that would exclude Cardozo; I don't think there really is that settled a definition. I could find no such definition in the Code of Federal Regulations. The closest I could find is a definition of "Hispanic or Latino" in 45 CFR 1355 app. A, which likewise turns on whether a person "is of Mexican, Puerto Rican, Cuban, Central or South American origin, or a person of other Spanish cultural origin regardless of race" — this might exclude Cardozo because I suspect he's of Portuguese cultural origin, but that would be a really funny way of defining Latino. After all, the Portuguese might be seen as not Hispanic, but surely they're just as Latino as the Spaniards. (UPDATE: Justin Miller points out: "Brazilians mostly speak Portuguese (the country was Portugal's main South American colony) and it's easily the most-populated country in South America. It would be hard then to neglect Brazilians' status as Latinos. If Brazilians are counted as Latinos, why not then those from Portugal itself? Language seems to be a central tenant of identifying Latino ethnicity and I think this simple case makes it pretty clear Cardozo was the first Latino justice.")

My New Shorter Oxford does define Latino as "A Latin American inhabitant of the United States," which would indeed exclude Cardozo — but would equally exclude all Americans of merely Spanish, as opposed to Latin American, extraction. This might be a sensible definition, but it's not the one in the Code of Federal Regulations.

Though, wait! What about Antonin Scalia, a Justice some of whose ancestors might have actually come from Latium itself? Yes, I know, etymology doesn't equal meaning; but it's still fun to play with this.

3. So the bottom line: There's no doubt that many Hispanics might see Judge Sotomayor as one of them in a way that they don't see Justice Cardozo as one of them. There's nothing "incorrect" about that; it's a matter of felt shared identity, which is defined by actual practices and not by scientific or often even legal definitions. But if one does look at legal attempts to try to capture Hispanic identity as a legal category, Justice Cardozo might well have qualified (which may say more about the weakness of such legal attempts than about anything else).

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Sotomayor's Troubling Property Rights Ruling in Didden v. Village of Port Chester:

University of Chicago and NYU law professor Richard Epstein points out that Judge Sotomayor was on a Second Circuit panel that issued the unsigned opinion in one of the worst property rights decisions in recent years, in the case of Didden v. Village of Port Chester. This does not bode well for her likely future rulings on property rights issues that come before the Supreme Court. In a 2007 National Law Journal op ed on Didden (no longer available on line, but excerpted here), Epstein and I discussed the facts of this disturbing case:

The U.S. Supreme Court's 2005 decision in Kelo v. City of New London generated a backlash on both sides of the political spectrum..... Many of the rear-guard defenders of this ill-conceived decision insisted that abusive condemnations are an aberration in an otherwise sound planning process. They, it turns out, were wrong. Didden v. Village of Port Chester, a most unfortunate decision out of the 2d U.S. Circuit Court of Appeals, helps demonstrate the shortcomings of their optimistic view.

In 1999, the village of Port Chester, N.Y., established a "redevelopment area" and gave its designated developer, Gregg Wasser, a virtual blank check to condemn property within it. In 2003, property owners Bart Didden and Dominick Bologna approached Wasser for permission to build a CVS pharmacy on land they own inside the zone. His response: Either pay me $800,000 or give me a 50% partnership interest in the CVS project. Wasser threatened to have the local government condemn the land if his demands weren't met. When the owners refused to oblige, their property was condemned the next day.

Didden and Bologna challenged the condemnation in federal court, on the grounds that it was not for a "public use," as the Fifth Amendment requires. Their view, quite simply, was that out-and-out extortion does not qualify as a public use. Nonetheless, the 2d Circuit . . . upheld this flexing of political muscle.

In fairness to Sotomayor and the other judges on the panel, their ruling was in part based on the Supreme Court's 2005 decision in Kelo v. City of New London, which defined "public use" extremely broadly. However, the majority opinion by Justice John Paul Stevens also emphasized that "the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit," was not enough to count as a "public use." It is difficult to imagine a more clearly pretextual taking than this one, since Didden and Bologna's property would not have been condemned if it weren't for their refusal to pay Wasser the money he sought to extort from them. Wasser's plan for the property was to build a Walgreen's pharmacy on it, which is virtually identical to the previous owners' plan to build a CVS. There was no general public benefit that Wasser's plan would provide that would not have been equally well achieved by allowing Didden and Bologna to keep their property and carry out their plan to put a CVS there.

The Didden panel decided the case in part based on procedural grounds (claiming that Didden and Bologna filed their case too late). However, it also clearly rejected their public use argument on the merits (see pp. 3-4 of the Second Circuit's opinion, available in the appendix to the property owners' cert. petition). Sotomayor's endorsement of this ruling is a strong sign that she has little or no interest in protecting constitutional property rights. Her appointment is likely to exacerbate the second-class status of property rights in the Court's jurisprudence.

The fact that the Supreme Court refused to take the case is not much of a point in the ruling's favor. The Court accepts only a tiny fraction of all the cert petitions that come before it and refuses to hear many important cases. Moreover, the panel further reduced the chance of appellate review by leaving this important decision unpublished.

For more details on Didden, see this amicus brief urging the Supreme Court to review the case, which Epstein and I filed along with several other property scholars.

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A Much Better Sotomayor Property Rights Opinion:

In my previous post, I criticized Judge Sotomayor's flawed ruling property rights ruling in Didden v. Village of Port Chester. It is only fair that I point out that, in 2002, she wrote a much better opinion in another significant property rights case, Krimstock v. Kelly. In Krimstock, Sotomayor wrote an opinion invalidating New York City's policy of seizing and holding vehicles owned by suspects accused of DUI and other offenses, and then retaining them for years at a time without allowing the defendants to challenge the seizures in any kind of legal proceeding. The city had not yet initiated any civil forfeiture proceedings against them. Sotomayor correctly ruled that this policy violates the Due Process Clause of the Fourteenth Amendment, which mandates that citizens cannot be deprived of property without "due process of law." It may not be clear how much process is "due" in any given case under the Amendment. But seizure of property for up to several years at a time with no process at all is surely too little.

The Krimstock case is similar to the recent 7th Circuit decision in Alvarez v. Smith, which I blogged about in February. Krimstock may actually have been slightly less egregious because three of the owners of the vehicles in Alvarez had not even been charged with a crime, while the seven plaintiffs in Krimstock had pleaded guilty to the charge of driving while impaired (though forfeiture of property was not part of the legally mandated sentence for this offense). It's hard to dispute Sotomayor's conclusion that:

A car or truck is often central to a person's livelihood or daily activities. An individual must be permitted to challenge the City's continued possession of his or her vehicle during the pendency of legal proceedings where such possession may ultimately prove improper and where less drastic measures than deprivation pendente lite are available and appropriate.

What does Krimstock say about Sotomayor's broader attitude towards constitutional property rights? I tend to doubt that it tells us very much. For reasons I elaborated more fully in my post on Alvarez, I think these cases are relatively easy. Surely holding onto valuable property for years at a time with no legal process at all is not "due process" under any defensible definition. However, the fact that the Supreme Court granted cert in Alvarez and may end up reversing it suggests that the state of protection for constitutional property rights is so bad that we can't take anything for granted. Therefore, Sotomayor does deserve some substantial credit for her opinion in this case. I do not believe that it fully outweighs what she did in Didden, however. In her time on the Second Circuit, Sotomayor ruled on two important property rights issues where the legal argument against the government was extremely strong. A 50% batting average in such situations is a lot better than 0%, but is still troubling.

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The Sotomayor Pick: Jan Crawford Greenburg has a very interesting report on the road to the President's selection. Hat tip: How Appealing.
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New York Times Profile of Sotomayor:

Today's New York Times has a detailed front page article describing Judge Sotomayor's life story. For the most part, the article is a good account of what is indeed an inspiring tale of achievement in the face of considerable disadvantage. Unfortunately, the Times ignores or minimizes most of the problematic aspects of Sotomayor's record. For example, it manages to quote relatively innocuous statements from Sotomayor's 2001 speech, "A Latina Judge's Voice," without mentioning it's most controversial passage: the one where the judge says "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." In fairness, that statement was the focus of an earlier NY Times article by legal reporter Charles Savage, published prior to her appointment. Today's lengthy article also ignores Sotomayor's dubious decisions in important property rights and free speech cases.

However, the Times does reveal one especially damning fact about Sotomayor that I was not previously aware of. It turns out that she is a Yankees fan:

Melissa Murray, who worked for the judge from 2003-4 and is now a law professor at the University of California, Berkeley, recalled going to a Yankees game with Judge Sotomayor. The judge, a Yankees fan, bought tickets in the bleachers, which Ms. Murray said the judge preferred as a more "authentic experience," and she appeared to be known to several in the crowd.

Judge Sotomayor's fondness for the "authentic" bleacher seats at the old Yankee Stadium leads me to wonder whether she approves of the massive public funding for the new Yankee Stadium, which has more luxury boxes but fewer total seats than its predecessor.

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My LA Times Debate With Erwin Chemerinsky over the Sotomayor Nomination:

Over the next three days, Erwin Chemerinsky, Dean of the UC Irvine Law School, and I will be debating the Sotomayor nomination at the Los Angeles Times blog. Our first two posts are available here. They address the following question:

Much has been made of the fact that Sonia Sotomayor would be the first Latina justice, and sitting Justice Ruth Bader Ginsburg has said she feels "lonely" as the only woman on the bench. How much, if at all, does the ethnic and gender diversity of the Supreme Court bench matter?

Erwin argues Sotomayor's racial and gender background will be a major asset to the Court. In my view, the appointment of a Hispanic Supreme Court justice is a important symbolic sign of racial progress; but Sotomayor should be judged much more by her record on legal issues (which I think is problematic) than by her background.

I am happy to have the opportunity to debate the nomination with such an oustanding and prominent legal scholar. Ironically, I once defended Chemerinsky's appointment as UCI Dean when it was temporarily rescinded due to foolish claims that he was "too liberal" to be the dean of a major law school. However, we don't agree on too many other issues, and it should be an interesting debate.

On Thursday and Friday, we will discuss other issues related to the nomination.

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Sotomayor's "Latina Judge's Voice" Speech Revisited:

After some consideration, I have decided that Sonia Sotomayor's 2001 speech, "A Latina Judge's Voice" deserves more extensive analysis than I gave it in a previous post. I still believe that the speech shows that Sotomayor thinks that judges can often legitimately base decisions in part on their racial or ethnic backgrounds. I especially think that that interpretation is by far the most plausible reading of Sotomayor's statement that she hopes 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."

However, it would be foolish to overlook the fact that many people, including serious commentators such as University of Texas lawprof Frank Cross and Reason's Kerry Howley believe that the relevant part of the speech is actually innocuous. I can't ignore the possibility that the speech is unclear, or that I just got it wrong. At this point, however, I still think that my initial interpretation was largely correct, and in this post I will try to explain why. For convenience, here is the entirety of the paragraph where the "wise Latina woman" sentence occurs:

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.

I. Is Sotomayor's Claim Limited to Discrimination Cases?

Some of my critics, including Cross, argue that this passage merely means that a Latina judge will, on average, do better than white males in deciding discrimination cases (perhaps because of her greater personal experience with discrimination). The first sentence of the next paragraph does in fact state that we should "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." However, it seems unlikely that Sotomayor's claim really is limited to such cases. After all, she made it in explicit response to Justice O'Connor's far more general statement that "a wise old man and wise old woman will reach the same conclusion in deciding cases." If Sotomayor meant to say that O'Connor's argument is correct the vast majority of the time with the exception of discrimination cases, it is strange that she gives no hint of that. Moreover, in an earlier part of the speech, Sotomayor denies that the goal of transcending one's race in judicial decisionmaking "is possible in all or even in most cases." That suggests that she believes her argument to have much broader application than merely to discrimination cases.

Even if Sotomayor's claim really is limited to discrimination claims, it is still deeply problematic. It is wrong to assume that a judge belonging to a group that is often victimized by a particular type of injustice will be generally superior in deciding cases that address it. Are white male judges generally superior in hearing reverse discrimination cases such as the one Sotomayor decided in Ricci v. DeStefano? Are judges who own real estate better qualified to hear takings claims? Perhaps judges who own businesses are the ones best qualified to hear claims asserting that an economic regulation is unconstitutional or otherwise illegal. A judge belonging to a group victimized by a particular type of injustice might be less likely to reject similar claims that have merit. On the other hand, she might also be excessively prone to accept claims that should be rejected or to ignore important interests on the other side of the case. Which effect dominates the other will probably vary from judge to judge and from case to case. In any event, we will likely be better off if judges assess discrimination cases and other claims as objectively as possible, while seeking to minimize the impact of their own personal racial or ethnic backgrounds.

II. Did Sotomayor Merely intend to Recognize the Impact of Judges' Racial Backgrounds on their Decisions, Without Embracing it?

Other critics, including Howley, argue that Sotomayor merely meant to recognize the commmon sense point that judges' decisions are sometime affected by their racial backgrounds, without claiming that this is a good thing. In one part of the speech, Sotomayor does indeed state the following:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases.

However, in the very next sentence Sotomayor said that "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society." This suggests that it isn't necessarily a good idea for judges to strive to "transcend . . . personal sympathies and prejudices." In combination with the above-quoted statement about the supposed superiority of Latina judges over white male ones in deciding many cases, it seems that Sotomayor believes that judges not only take account of their racial background in making decisions, but are often justified in doing so. Perhaps Sotomayor also believes that judicial transcendance of personal sympathies and prejudices is a desirable goal; but since in her view it is probably impossible to achieve in a large number of cases, it will often be a "disservice" to pursue it at the expense of denying the special insights that might sometimes be had by relying on those "prejudices" after all. That doesn't mean that Sotomayor believes that a judge's race or gender is a useful resource in all cases or that impartiality is completely worthless. After all, she said that the "wise Latina" judge is likely to do better "more often than not," not that she will have an advantage across the board. However, it's clear that she does believe that race and gender are useful guides to judicial decisionmaking in at least a large number of situations.

In addition, if Sotomayor really did merely mean to say that judges sometimes wrongly take account of their personal background in deciding cases, there would have been no need to dwell on such an obvious point at great length - one that hardly any serious commentator disagrees with. The real question - the one she actually tried to address - is how we should react to this state of affairs. One approach - the one I think best - is to try to appoint judges who will ignore their own racial backgrounds as much as possible and to strive to promote that as a norm for all judges to follow. Sotomayor's approach, by contrast, is to endorse reliance on personal background in at least some cases, and to urge minority judges to offset the "personal sympathies and prejudices" of their white colleagues with their own.

Finally, I think it's telling that hardly any one would defend a similar statement made by a white male judge. As legal columnist Stuart Taylor puts it:

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life" — and had proceeded to speak of "inherent physiological or cultural differences" [as Sotomayor did later in her speech].

I don't think that Sotomayor is a "racist and a sexist," nor do I think she should be "banished from polite society." However, her statement does show that she believes that judges should often base decisions in part on their personal racial and gender backgrounds. If a white male judge had said something similar, few would deny that such (or something much worse) was the import of his words. Sotomayor's speech should be judged by the same standards.

I would have cut Sotomayor more slack if the statements in question had been off the cuff remarks rather than part of a prepared speech delivered as a keynote address at a conference; the speech was also published in a law journal in 2002, at which point Sotomayor could have removed or clarified any part of her remarks that didn't really reflect her considered views. I would also be willing to ignore the speech if she had repudiated it at any time in the past eight years. I will even give her the benefit of the doubt if she repudiates the more problematic parts of the speech now (perhaps at her confirmation hearings). We have all sometimes made mistaken statements that we admit to be wrong in retrospect. But until that happens, I can't avoid the conclusion that the speech reveals a troubling element of Sotomayor's view of judging.

UPDATE: Frank Cross authorized me to post the following from e-mails he sent me clarifying his position:

I didn't mean the statement was innocuous. Just that it was limited to the discrimination context. I think it is objectionable in that context as well. Though not outrageously so, as I suspect it is a common psychological feeling for anyone that they are right and others wrong . . .

I think she was talking about the discrimination context, I think it's wrong to say that a Latina woman would make a "better" decision than a white male in this context, but I think it is right to think that a panel including diversity would make a better decision in this context.

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My LA Times Debate with Erwin Chemerinsky, Part 2:

The second part of my LA Times debate with Erwin Chemerinsky over the Sotomayor nomination is now available, here. In this series of posts, we consider the pros and cons of judicial reliance on "empathy" in making legal decisions:

President Obama has come under fire for his "empathy" standard in selecting a Supreme Court nominee. Is there a conflict between considering the real-world implications of Supreme Court decisions and staying true to the intent of the Constitution and federal law?

I argue that relying on empathy is likely to reduce the quality of judicial decision-making and bias it in favor of whatever groups the judges feel more empathetic towards. Chemerinsky contends that judicial reliance on empathy is both inevitable and often a positive good.

Writing the piece on empathy helped me to clarify my thinking on the subject. However, I fear that to some extent Chemerinsky and I are talking past each other. I don't disagree with Chemerinsky's claims that conservative justices (like liberals) sometimes base decisions on empathy and on their political ideology, and that judicial reliance on empathy cannot be completely eliminated. Still less do I reject his claim that cases that come before the Supreme Court often don't have easy answers (a point I noted myself). Rather, my view is that reliance on empathy is a negative rather than a positive - whether practiced by conservative judges or liberal ones. I also think that it is a poor way to resolve either close cases or easy ones. Finally, I have no wish to defend all of of the jurisprudence of the current conservative justices or to suggest that they always meet the standard of judicial impartiality I advocate. Ultimately, I think the real issue is not whether conservative and liberal judges sometimes rely on empathy (they both obviously do), but whether we should strive to reduce such reliance or increase it.

Part I of our debate is available here. The discussion will conclude tomorrow.

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Doctrinally Relevant Empathy and Doctrinally Irrelevant Empathy: I wonder if the discussions about "empathy" that we're likely to have in the next few months might be advanced a bit by distinguishing doctrinally relevant empathy from doctrinally irrelevant empathy.

  In some areas of law, the relevant legal test absolutely requires judicial empathy. The applicable legal standard may call on the judge to try to assess the real-world impact of a particular practice on a person or group of people, and judges cannot do that successfully without putting themselves in the shoes of the person who might be impacted. We might label this "doctrinally relevant empathy." It's a sort of worldliness that allows a judge to apply the law in a realistic fashion. Everyone agrees that this sort of empathy is not just good, but absolutely necessary.

  We might distinguish this from what we could call "doctrinally irrelevant empathy." In this setting, empathy is not directly relevant to the rule or standard to be articulated or applied by the court. The relevant legal question does not provide a standard by which empathy is implicated. Instead, empathy is a quality rooted in a normative sense of justice or fairness that helps the judge articulate or apply a rule in a way that achieves a more fair or more just result. This latter kind of empathy is the kind of empathy that is controversial.

  My sense is that a lot of discussions about empathy and the judicial role mix up these two categories. One side will say empathy is bad, thinking of the second category; another will say empathy is absolutely necessary, thinking of the first. I think keeping these two categories somewhat distinct might be helpful; perhaps it will keep the two sides from talking past each other.

  I realize that the distinction I'm suggesting here isn't a simple one. The line between doctrinally relevant empathy and doctrinally irrelevant empathy can be difficult to draw, as there are many legitimate sources of legal interpretation and they may make empathy relevant in some ways and irrelevant in others. But I think it's a modestly helpful distinction that can at least someone lessen the confusion over the debate of empathy's role in legal interpretation.

  UPDATE: It occurs to me that an example might be helpful, so here's a highly stylized one that can at least focus the debate a bit (although I'll make up the hypo in a way design to keep the debate going, not end it).

  Imagine a state has a rule that a person sentenced to death cannot be put to death using a method of execution that is "very painful," but that claims seeking to avoid the method of execution must be filed more than 48 hours before the scheduled execution occurs and are defaulted if they are filed later. Two prisoners facing the same method of execution file their petitions. Prisoner A files his petition seeking to avoid the method of execution 72 hours before his scheduled execution. Prisoner B files his petition seeking to avoid the method of execution 47 hours before his scheduled execution, 1 hour late.

  I think everyone would agree that judges would need empathy to evaluate Prisoner A's claim accurately. Empathy is legally relevant here: Judges would have to learn all about the setting of the execution, and to imagine how painful the method of execution would be from the standpoint of the condemned. This is doctrinally relevant empathy, and it's not controversial. Of course, there could be controversies over what empathy requires, with different people reaching different conclusions about what methods of execution are "very painful." But no one disagrees that empathy is relevant and necessary to decide the case.

  On the other hand, the role of empathy in deciding whether to hear Prisoner B's claim despite being filed an hour late is genuinely controversial. Empathy isn't directly relevant to the legal issue, at least as I have framed it: The only issue is the timing of when the claim was filed. But different people will have different views about whether it is appropriate for judges to take into account what they may see as injustice — drawn, perhaps, from their views of the death penalty and the fact that the claim was filed just one hour late — to look particularly hard at whether they can fashion a rule that allows the claim despite being filed too late.
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Understanding the Point at Issue in the Judicial Empathy Debate:

Orin's recent post helpfully clarifies some of the relevant issues in the debate over judicial "empathy." I completely agree with Orin that some cases require judges to be aware of a litigant's mental state. For example, a case alleging illegal intentional race discrimination requires judges to assess evidence indicating whether or not the defendant really did intend to discriminate. As Orin notes, hardly any one denies this.

I. Empathy Goes Beyond Merely Understanding a Litigant's Mental State.

Many of those advocating "empathy" as a tool for judicial decision-making define the term far more broadly. "Putting oneself in another's shoes" - the conventional metaphor for empathy - entails a lot more than simply knowing what the other person thinks or feels. For example, I am aware that a committed anti-Semite hates and fears Jews. In that very limited sense, I might be said to empathize with him. However, I cannot feel his emotions as if they were my own, because they diverge too much from my worldview. Although I can understand the content of his beliefs, I cannot really put myself in his shoes.

To take a more immediately relevant example, consider the Lily Ledbetter case, which many advocates of judicial empathy point to as the paradigmatic instance of insufficient empathy by the conservative justices. Surely those justices understood that Ledbetter felt frustrated and perhaps angry when judges ruled that her sex discrimination claim was barred by the statute of limitations. They also likely realized that she believed she was the victim of an injustice. One would have to be a fool not to see these things.

When critics of the Ledbetter decision claim that the conservative justices lacked "empathy" for the plaintiff, they mean not that the conservative justices were unaware of her feelings, but that they failed to identify with them sufficiently. As Barack Obama recently put it, "the quality of empathy" he looks for in judges includes "understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes" [emphasis added]. Advocates of judicial empathy claim not only that judges sometimes must determine the mental states of litigants, but also show sympathetic "identification" with them. At the very least, they want judges to put themselves in litigant's shoes to a far greater extent than merely knowing what the litigants think or feel. And they want that kind of empathy to be a basis for judicial decisions in some important cases.

It is this position that I consider vulnerable to the objections I raised in my Los Angeles Times exchange with Erwin Chemerinsky. In my view, reliance on empathy tends to introduce dangerous biases and often leads to less accurate assessment of relevant empirical questions than the use of more analytical methods. I consider it inevitable that most judges - and most people - feel greater empathy for those most like themselves. Thus, abjuring reliance on empathy is essential if judges are to make impartial decisions, as is their duty in a legal system based on the rule of law.

II. Empathy and the Assessment of "Real-World Impact."

Finally, I may disagree somewhat with Orin's claim that the use of empathy is needed in cases where "[t]he applicable legal standard may call on the judge to try to assess the real-world impact of a particular practice on a person or group of people." If Orin means merely that such assessments sometimes require knowledge of those people's mental states, I don't think there is any dispute between us. But, as discussed above, that is not the kind of "empathy" that Obama and others have in mind.

"Assessments of real-world impact" do not require the use of empathy in the broader sense meant by Obama. To the contrary, such assessments are better conducted by means of systematic analysis that abjures personal identification with the litigants as much as possible. For example, social scientists often conduct rigorous studies that usefully analyze the effects of policies on people whom they do not know and have little empathy with. By contrast, as I tried to explain in the LA Times debate, relying on empathy is likely to actually blind judges to the less immediately obvious indirect effects of a decision.

In sum, no serious commentator denies that judges sometimes need to be aware of the mental states of litigants. The question is whether they should base important decisions on a form of "empathy" that goes well beyond that.

UPDATE: Just to be clear, it is not my purpose to defend the Ledbetter decision. I don't know enough about the relevant legal issue to have any strong opinion on whether it was correctly decided. I do think that it should have been decided without relying on empathetic identification with either side.

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Sotomayor May be Wrong About Race, but She is No Racist:

Legal commentator Stuart Taylor has a good column criticizing various conservative pundits - including Rush Limbaugh and Newt Gingrich - who accuse Supreme Court nominee Sonia Sotomayor of being a racist.

Both Taylor and I have been very critical of Judge Sotomayor's 2001 speech where she claimed that "a wise Latina" judge will generally make better decisions than a white male one, and argued that judges can often legitimately base decisions in part on their racial or ethnic identity. I believe her position is wrong. But it isn't racist. Sotomayor did not suggest that whites are an inferior race relative to some other group or that they should be denied equal rights or relegated to second-class citizenship. Conservatives often rightly denounce overblown accusations of racism advanced by leftists. For that reason, among others, it is important that they avoid committing the same sin themselves.

And while we are on this sorry subject, Limbaugh also did his reputation no favors when he said that "Obama is the greatest living example of a reverse racist" in the same statement (quoted by Taylor) where he accused Sotomayor of racism. I think Obama is wrong about a great many things. But he pretty clearly isn't a "reverse racist," much less "the greatest living example" of such.

UPDATE: I have taken the very unusual step (for me) of closing down comments on this post since I think that the thread has gone well past the point of diminishing returns, and some of the comments exceed even the very broad limits of what I consider to be permissible civility.

UPDATE #2: The original version of this post incorrectly identified Gingrich, rather than Limbaugh, as the one who called Obama "the greatest living example of a reverse racist." I apologize for the error, which has now been corrected.

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My LA Times Debate with Erwin Chemerinsky, Part 3:

The third and final part of my Los Angeles Times debate with UC Irvine Law School Dean Erwin Chemerinsky is now available here.

In this installment, we considered the question of whether "Obama's runaway victory last November give him a strong mandate to structure the Supreme Court as he likes." Since we actually don't disagree that much over the "mandate" issue, I used part of my allotted space to try to sum up the key points of dispute from our earlier exchanges over Sotomayor and judicial empathy.

I am grateful to the Times for organizing this discussion and to Dean Chemerinsky for his insightful contributions to it.

The entire series of posts is available here.

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Another Critic of Judge Sotomayor's "Wise Latina" Sentence:

President Obama. Greg Sargent (The Plum Line) reports:

In an interview to air on NBC later tonight, Obama concedes she may have misspoke but that her larger meaning was clear and uncontroversial.

According to the NBC press release, Obama says:

"I'm sure she would have restated it. But if you look in the entire sweep of the essay that she wrote, what's clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through — that will make her a good judge."

For my thinking on the quote, see this item on politico.com.

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Property Rights Cases are Not "Pro-Business" vs. "Anti-Business" Cases:

One of my longstanding peeves is that property rights and economic regulation cases are often depicted as pitting "pro-business" interests against an "anti-business" or pro-consumer camp. Rarely does this frame accurately reflect the real issues at stake.

This recent New York Times article discussing Sonia Sotomayor's rulings in property rights and regulatory cases is just one of many examples of this fallacy. The article analyzes the decisions from the standpoint of trying to determine whether she falls into "a pro- or anti-business camp." In the process, author John Schwartz cites Sotomayor's ruling against property rights in the Didden case as an example of an anti-business ruling, while claiming that her pro-property rights decision in Krimstock v. Kelly cuts the other way.

The pro-business vs. anti-business approach to these cases makes little sense. In Didden, there were business interests on both sides. As I explained in this post, one businessman - politically connected developer Gregory Wasser - used the the threat of condemnation to try to force two other businessmen to pay him $800,000 or give him a 50% stake in their business. When they refused, the local government used the power of eminent domain to transfer their land to Wasser, as the latter demanded. Judge Sotomayor and her Second Circuit panel ruled that this taking was for a permissible "public use" under the Takings Clause of the Fifth Amendment. Since business interests were arrayed on both sides, describing the decision as "pro-business" or "anti-business" is misleading. Rather, the decision involved a clash between property rights and the power of government, which is sometimes exercised on behalf of locally powerful business interests such as Wasser against politically weaker landowners (some of whom are businesses themselves).

The pro-business vs. anti-business frame is even less relevant to Krimstock than Didden. Sotomayor's opinion in Krimstock struck down a New York City law that allowed the government to seize cars belonging to certain criminal defendants and hold them for years at a time without giving the owners any opportunity whatsoever to contest the seizures. I don't see any way in which Sotomayor's decision was somehow "pro-business," except in the trivial sense that some of the car owners might also have been businesspeople. Rather, this case too pitted the power of government against property owners, many of whom might have been poor or politically weak.

More generally, court decisions protecting property rights against government should not be viewed as "pro-business" because the Didden pattern of local government using eminent domain to benefit politically influential business interests is actually quite common. One of the most notorious examples is the 1981 Poletown case, where the City of Detroit used eminent domain to expel some 4000 people from their homes so that the land could be transferred to General Motors. The Supreme Court's famous decision in Kelo v. City of New London is another example, since those condemnations were in large part instigated by the powerful Pfizer Corporation, which expected to derive profit from them. For reasons I discuss in this article, eminent domain is often used to transfer to take the property of the politically weak for the benefit of the powerful (often including influential businesses).

But it would also be a mistake to view pro-property rights decisions as "anti-business." After all, many of the victimized property owners are themselves businesspeople, as was true in Didden, Poletown, Kelo, and many other cases. Small businesses are among the most common targets of Kelo-style "economic development" takings.

What is true for property rights cases is also true for many regulatory decisions, which also often pit different business interests against each other rather than an undifferentiated business class interest against other sectors of society.

I do not mean to be too critical of theTimes piece. To the contrary, I think Schwartz should be commended for making a genuine effort to consult experts from across the political spectrum; and of course I'm grateful that he cited the writings of two Volokh Conspirators, including myself. I also think he did a generally good job of summarizing a large number of cases in a short space. Unfortunately, the article exemplifies the ways in which even a skilled and fair reporter can fall into the error of using this misleading framework for analyzing property rights decisions.

UPDATE: I would like to briefly note two other minor, but unfortunate errors in the Times article. First, the article describes Richard Epstein, perhaps the leading libertarian legal scholar in the country, as a "conservative." Confusing libertarians with conservatives is a common mistake, but still a significant one, especially in an era of Bush-style "big government" conservatism when libertarians and many conservatives often diverge on the kinds of economic issues the article focuses on. Second, the author writes that Sotomayor's Didden ruling "followed" the Supreme Court's decision in Kelo. This is true to an extent, but it ignores the fact that Didden went even farther than Kelo in undermining property rights by allowing government to condemn property even in a situation where the stated rationale for the taking was a blatant "pretext" for the true purpose of benefiting a private party, a scenario the Kelo majority described as unconstitutional. It is possible, however, that Schwartz merely meant to say that Didden "followed" Kelo in the sense that it came later chronologically.

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An Unpersuasive Defense of Judge Sotomayor's Ruling in the Didden Case:

Daniel Hemel has published in Forbes what I think is an unpersuasive defense of Judge Sonia Sotomayor's ruling in the Didden case, which I criticized here. In that case, a the Village of Port Chester condemned a property when the owners refused to pay $800,000 to the city's designated developer for the area. For reasons I explained in the earlier post, this case goes beyond even Kelo v. City of New London in licensing the condemnation of private property for the benefit of other private interests.

Hemel, however, has a different take on the facts that he claims justifies the decision:

According to Didden [one of the owners of the condemned property], G&S chief Gregg Wasser demanded an $800,000 payment or else he would have the village condemn the land and hand it to G&S. The village did indeed condemn the property the next day, although it paid Didden $975,000 in compensation. Didden sued the village in U.S. District Court, lost and appealed the case....

Wasser's $800,000 offer came at a November 2003 meeting with Didden and his business partner Domenick Bologna. The attendees do not agree on what happened at that session, but Wasser's account appears to be--at the very least--a plausible one. Wasser says he told Didden and Bologna that "it would be a waste of time for the lawyers to argue over who had 'better' rights to proceed with their project" and that the parties should settle the matter themselves.

According to court documents, Wasser estimated that the winner of the dispute would make a $2 million profit but that "whoever would be responsible for completing the project should be given some credit and was entitled to more than a 50-50 split." He said that whichever party proceeded with its drug store plans should pay the other $800,000, and he added that he was willing to take either end of the deal.

In retrospect, Wasser's offer appears to have been quite generous because he had strong reason to believe that he would win in court (as he ultimately did).

While Didden's backers say that Wasser's offer was extortion, it looks like it might have been an innocuous settlement proposal--standard fare for legal disputes. Unless Didden and Bologna could prove their side of this "he said, he said" spat (and they could not), Judge Sotomayor was correct to conclude that Wasser's "voluntary" attempt to settle the dispute "was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

There are two major problems with Hamel's defense of Sotomayor's ruling. First, the case was at the stage where the court was considering the Village's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim for which relief can be granted," which means that the Village was moving to dismiss the case without sending it to a jury because the owners didn't have a case even if their version of the facts was correct. When considering a 12(b)(6) motion, federal courts are required to assume that the plaintiffs' version of the facts is correct unless it can be "proven beyond doubt" that it isn't. If the suit really did hinge on a "he said, he said" dispute as Hemel suggests, the panel should have sent the disputed factual issue to the jury for adjudication. One of the most troubling aspects of the appellate panel's ruling is that they apparently concluded that Didden and Bologna had no case even under the assumption that they were telling the truth.

Second, Wasser's proposal was extortionate even if he was telling the truth. If Wasser's version of events is correct, he in effect gave Didden and Bologna two options: pay him $800,000 or 50% of the proceeds of their project for the right to proceed with the construction of a CVS on their land or transfer the land to him in exchange for an $800,000 payment from Wasser. Hamel claims that the inclusion of this second option makes the offer nonextortionate and even "generous." It was no such thing. As Hamel himself notes, the land was worth at least $975,000 (the amount the city paid Didden and Bologna as compensation for the taking). Thus, Hamel's alternative offer was an offer to pay the owners $175,000 less than they could get even in an eminent domain proceeding (which often end up undercompensating owners).

If Wasser's account is correct, he simply made two different extortionate offers, using the threat of eminent domain as leverage; his "generosity" consisted of letting the victims choose between the two unsavory options. One can characterize this is as a "settlement proposal" which is "standard fare for legal disputes." But there would have been no "legal dispute" in the first place if not for Wasser's threat to have the property condemned unless his demands were met.

If a Mafia don comes to you and says that he will break your legs unless you either 1) pay him $800,000, or 2) sell him your land at a price well below market value, that would surely be extortion. Wasser's "generous" offer was exactly the same, except that his leverage was based on the threat of condemnation rather than breaking the owner's legs. If this is not extortion using the threat of eminent domain as leverage, it's hard to see what would be.

In sum, Hamels' analysis fails to justify Judge Sotomayor's extremely dubious decision in Didden. If anything, it highlights her failure to properly apply the relevant legal standard in this important case.

UPDATE: It is worth noting that neither the district court decision (which Sotomayor's Second Circuit panel affirmed without any changes), nor the appellate opinion itself make any mention of the additional offer by Wasser that Hamel stresses in his op ed. That suggests that neither considered it relevant to the outcome of the summary judgment motion or (less likely) that they thought that Wasser's version of events wasn't credible enough to warrant consideration. Both opinions can be found in the appendices to the property owners' unsuccessful cert petition to the US Supreme Court.

UPDATE #2: I have changed around some of the wording of the original post in order to make a couple points clearer and make a few phrases flow better. I have not changed any of my substantive points, so I won't catalogue these stylistic changes in detail.

UPDATE #3: As commenters point out, the plaintiffs' case was actually dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a cognizable legal claim, rather than an ordinary summary judgment motion. I was remiss in not noting this in the original post. However, this fact actually weakens Hemel's argument further, since under Rule 12(b)(6), a court must assume - for purposes of ruling on the motion - that the plaintiff's version of the facts is true unless it can be proven false beyond doubt. I have amended the original post to reflect this fact.

UPDATE #4: In an e-mail to me Daniel Hemel cites court documents indicating that Wasser's alternate offer to Didden and Bologna was to by the land for $800,000 plus "fair market value" (this point was not noted in Hemel's original op ed). I thank Mr. Hemel for the clarification. Even this offer, however, would still be extortionate and far from "generous." Assuming that the "fair market" value noted in the offer was comparable to the $975,000 eventually paid in eminent domain compensation by the government, Didden and Bologna would have ultimately received $1.775 million if they had accepted the proposal. However, they would have lost some $2.975 million in exchange: the fair market value plus the $2 million Wasser estimated as the expected profits from the CVS Didden and Bologna had planned to establish on the site. Thus, Wasser's most "generous" offer was in effect a proposal to take $1.2 million from the owners, using the threat of eminent domain as leverage. This is even less "generous" than his alternative demand for a straight-up payment of $800,000 in exchange for being allowed to keep the land and proceed with the CVS, which everyone recognizes would be extortionate if proposed separately.

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Podcast on Sotomayor and Property Rights:

The Manhattan Institute recently posted a podcast I did on Judge Sotomayor's important property rights decisions with Jim Copland, my law school classmate and director of the Institute's Center for Legal Policy.

Jim had a good related column on Sotomayor and the limits of empathy as a guide to judicial decisionmaking in yesterday's National Law Journal.

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What the Didden Case Tells Us About Sotomayor's Attitude Towards Property Rights:

In today's New York Times, leading legal reporter Adam Liptak has an informative article about Sonia Sotomayor's dubious property rights decision in Didden v. Village of Port Chester, which I previously criticized here and here. In Didden, a court of appeals panel headed by Sotomayor upheld the condemnation of two businessmen's property because they refused a politically connected developer's demand to either pay him $800,000 or allow him a 50% stake in their business.

Liptak does a good job of summarizing the case and its importance, though some legal details have inevitably been omitted. I was slightly surprised to see the article draw an apparent contrast between my view of Didden's significance and that of Richard Epstein, the leading University of Chicago and NYU lawprof with whom I coauthored an amicus brief urging the Supreme Court to reverse Sotomayor's decision in the case:

"This is the worst federal court takings decision since Kelo," said Ilya Somin, who teaches property law at George Mason University and helped write the brief. "It's very extreme, and it is significant as a window into Judge Sotomayor's attitudes toward private property."

But another author of the brief, Richard A. Epstein, said the decision in Mr. Didden's case was a rare misfire that provided no larger insights into Judge Sotomayor's thinking.

"It's a disappointment and it's wrong and it's ill thought out," Professor Epstein, a law professor at the University of Chicago and New York University, said of the ruling. "But it's not one of six. It's one of two." (The other poorly handled decision, he said, was Ricci v. DeStefano, which rejected employment discrimination claims from white firefighters in New Haven.)

If this is indeed Epstein's view, it is somewhat in tension with his previous statement that "American business should shudder in its boots if Judge Sotomayor takes the attitude [reflected in her Didden opinion] to the Supreme Court." As he explained in the earlier op ed and I discussed here, Didden is striking because it goes even further than Kelo v. City of New London in allowing private property to be condemned for the purpose of enriching other private parties, without any proof that some sort of public benefit will be achieved. Epstein also pointed out that Sotomayor dismissed the issue with a cursory one sentence statement, suggesting that she didn't even think it was a close call.

Perhaps Epstein merely meant to say that Sotomayor has made only two egregiously bad decisions in important cases (Didden and Ricci v. DeStefano, effectively criticized in this series of posts by co-conspirator Jonathan Adler), and that these two gross errors don't reflect her overall record. I certainly agree that Sotomayor's performance in most cases was far better than in these two, and that she is generally very competent. Nonetheless, I think these two cases are telling precisely because they are unusual. As Barack Obama famously pointed out, "while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult." Didden and Ricci are part of Obama's 5 percent - major cases on important disputed constitutional issues. As Obama emphasizes, a judge's performance in these types of cases is especially critical in determining her fitness for the Supreme Court. Sotomayor simply hasn't handled very many important constitutional cases, so we must carefully consider the few that she has.

Indeed, Didden is probably even more telling than the cases Obama had in mind it was considerably easier than most cases in the 5 percent. It was precisely the kind of "pretextual" taking that even the Kelo majority considered to be unconstitutional.The "truly difficult" challenge here was justifying in favor of the government without even allowing the property owners to present their evidence of a pretextual taking before a jury; it would have been relatively easy to defend a decision going the other way. It is revealing that Sotomayor not only got the outcome wrong, but seemed to think it wasn't even close. If Sotomayor didn't believe that there was a serious property rights issue even in this extreme case, it is unlikely that she would protect property rights under the Takings Clause in any other situations likely to come before the Supreme Court.

UPDATE: Although less important, in my view, than Didden and Ricci, it's also worth noting that Sotomayor made another dubious constitutional ruling in Doninger v. Niehof, an important free speech case where she upheld a public school's decision to punish a student for an internet blog post that she wrote on her own time outside of school grounds. I briefly discussed Doninger in the first part of my LA Times debate with Erwin Chemerinsky. Liberal legal scholars Jonathan Turley and Paul Levinson have been even more critical of Sotomayor's Doninger opinion than I was.

Since Sotomayor has made no more than a handful of important constitutional rulings in her judicial career, the fact that she got three of them badly wrong must be given great weight in assessing her nomination.

UPDATE #2: While I don't want to comment extensively on Ricci v. DeStefano, I should perhaps point out that my disagreement with that decision does not rest on the view that affirmative action is categorically unconstitutional. To the contrary, I think it may well be both morally and legally defensible when used to provide genuine compensation for past racial discrimination. Ricci, however, did not involve any such effort at compensatory justice. For reasons elaborated in Jonathan Adler's posts, Sotomayor's ruling in the case raises many troubling questions even for people who believe, as I do, that the use of racial classifications for affirmative action is sometimes permissible.

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Eduardo Penalver's Defense of Sotomayor's Didden decision:

Eduardo Penalver, a prominent property scholar, has written an interesting, but I think ultimately unsuccessful defense of Judge Sonia Sotomayor's ruling in the Didden case, which I described and criticized here, here, and here. As readers will recall, Didden involved a case where two businessmen's property was condemned because they refused to pay $800,000 to Gregg Wasser, a developer designated by the Village of Port Chester, NY as the primary redeveloper of its "redevelopment area" under a 1999 agreement.

Here is Penalver's argument:

At first glance, the facts of the case sound like Kelo redux, except with a developer on the receiving end of the condemnation instead of elderly homeowners. But there is a wrinkle. Language in Kelo left the door open for challenges to condemnations where the stated reason for the condemnation (in this case, economic redevelopment) is not the actual reason for the exercise of eminent domain — a sort of pretext challenge to condemnations. The plaintiffs in this case alleged that, after Port Chester had authorized the condemnation of land within the redevelopment district but prior to the actual condemnation of their parcel, the designated developer demanded an $800,000 payment from the developer/landowner to walk away from his power to condemn the parcel....

While I think there are some significant problems with the trial court's opinion, and while I disagree with the Second Circuit's use of a summary order, the case does not seem to me to be such a clear slam dunk for the plaintiffs that it should cause Sotomayor any serious trouble. The Liptak story [in the NY Times] made a great deal of the demand for the $800,000 payment, and rightly so. But the fact may be less obviously damning than initially appears to be the case.

The demand for the payment was made, as I understand the facts, by the developer granted by Port Chester the exclusive power to carry out redevelopment within the designated redevelopment area. That area included the plaintiffs' parcel. Now, I take it that the redeveloper agreed to take on his role because he stood to make a tidy profit from redeveloping the land within the redevelpoment area pursuant to the comprehensive plan and empowered with the ability to assemble parcels through the use of eminent domain. But the redeveloper certainly looked at the economics of the entire plan, and the profit to be earned from the plan as a whole. That profit would not come from every parcel or every individual element of the overall plan, but on the accomplishment of the redevelopment plan as a whole.

In the redeveloper's negotiations with the plaintiffs, the plaintiffs indicated that they wanted to redevelop their parcel within the redevelopment area (as part of a project that would have included some land they owned outside the redevelopment area) themselves, keeping the profits from that project for themselves as well. It appears to have been in the context of these negotiations that the redeveloper asked for the $800,000 payment in order to forgo condemnation and as his condition for allowing plaintiffs to, in effect, remove their parcel from the larger redevelopment area.

The plaintiff quoted in the story called this extortion. But it's not obvious to me that this is the best way to characterize the dynamics of the situation. If the redevelopment of the plaintiffs' parcel was one of the elements on which the redeveloper stood to make a substantial profit, foregoing his own monopoly right to redevelop that parcel (a right given to him by the city when it designated him the developer for the redevelopment project) would have altered (from his perspective) the economics of the larger project as a whole. In other words, if I'm reading the facts correctly... to earn the profits from that parcel would have represented a significant opportunity cost to the redeveloper, and, as such, his demand for some compensation for walking away strikes me as less sinister.

The key problem with Penalver's rationale is that the redevelopment agreement only gave Wasser the power to condemn property for the purposes of advancing the goals of the redevelopment plan, which the district court decision (available here) quoted as "to revitalize and beautify the Village's long neglected waterfront, eliminate a deteriorating downtown urban blighted area, bring sorely needed jobs to the Village, add to the Village's tax base, and importantly, bring the public back to the Village's downtown and waterfront." It did not give him the power to condemn property solely because the current owners refused to pay him money or grant other concessions in exchange for his forbearance. Had the agreement done so, it would have been a clear violation of federal constitutional restrictions on "pretextual" takings intended to benefit a private party (reaffirmed even in Kelo v. City of New London, as Penalver notes), and possibly also a violation of New York state law.

Penalver in effect suggests that, even if this taking wasn't needed to promote the redevelopment of Port Chester, it was constitutionally permissible because the owners' property helped to pay Wasser for his services in redeveloping the area. However, neither Kelo nor any other federal decision has ever held that the government can condemn the property of one individual in order to compensate some other private party for performing a public service. A program to pay public officials by condemning private property and transferring ownership to them would surely be unconstitutional. That conclusion is even more clear if the property is transferred to a private individual who isn't a government employee.

Penalver also argues that the Sotomayor panel's decision was justified by the fact that the owners had not filed their claims in time under the statute of limitations. As I noted in an earlier post, this point ignores the fact that Sotomayor's opinion decided the substantive constitutional issue as well. Even if Sotomayor was right about the statute of limitations question, she commmited a grave error in her extremely cursory resolution of the constitutional issue. The latter, of course, is vastly more important than the former and is the reason why the case has attracted so much attention.

Moreover, as I explained in this amicus brief (pp. 14-16) coauthored with several other property scholars, the Second Circuit's resolution of the statute of limitations issue was in fact inseparable from its resolution of the substantive question. The court had ruled that the three year statute of limitations expired in 2002, three years after the declaration of the 1999 redevelopment plan. However, this simply ignores the fact that the owners were challenging not the declaration of the plan as such, but rather Wasser's pretextual use of it in November 2003 as leverage for extorting money from them. Our amicus brief explains more fully why Kelo and other Supreme Court precedents allow owners to challenge pretextual takings even in cases where they occur within a redevelopment area. Indeed, as we explain there (pp. 11-12) the Kelo majority actually cited a 2001 case where a taking within a redevelopment area was invalidated as an example of the kind of pretextual condemnation that they believed to be unconstitutional.

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Supreme Court to Hear Oral Argument in Alvarez v. Smith - A Key Property Rights Case:

This fall, the Supreme Court will hear oral arguments in Alvarez v. Smith, an important property rights case that I blogged about in February. For reasons, I discussed in that post, the Supreme Court must rule for the property owners in Alvarez if it is to preserve even minimal protection for the property rights of crime suspects under the Due Process Clause of the Fourteenth Amendment.

Radley Balko, a prominent writer on criminal justice issues, has an excellent column discussing the case:

This fall, the U.S. Supreme Court will hear oral arguments in Alvarez v. Smith, a challenge to the state of Illinois' Drug Asset Forfeiture Procedure Act (DAFPA)... The six petitioners in Alvarez each had property seized by police who suspected the property had been involved in a drug crime. Three had their cars seized, three had cash taken. None of the six were served with a warrant, none of the six were charged with the crime....

Under DAFPA, incredibly, the government can delay for up to 187 days before an aggrieved property owner can get even a preliminary hearing on warrantless seizures of less than $20,000. The three car owners, for example, had to go without their cars for more than a year....

Under the 14th Amendment's Due Process clause, a state may not "deprive any person of life, liberty, or property, without due process of law." If Illinois' forfeiture law isn't a violation of the property portion of the Due Process clause, it's hard to fathom what would be.

In an opinion written by Judge Richard Posner, the Seventh Circuit struck down the Illinois law, ruling that the property owners were entitled to at least a minimal hearing before the government could take their cars and hold them for months at a time. This is the bare minimum of protection required by the Due Process Clause. As Radley explains, such asset forfeitures are an increasingly common part of the War on Drugs, and often allow authorities to hold the property of people who haven't been convicted of any crime. In this case, the six car owners in question weren't even charged with any offenses. Needless to say, most of the people victimized by such asset forfeitures tend to be poor and politically weak, and thus unlikely to have the political clout necessary to force state legislatures to reform their policies.

Unfortunately, it seems likely that the Supreme Court could reverse the Seventh Circuit and uphold the Illinois law. As a general rule, the Court usually hears cases only when there is a split between the courts of appeals (which is not true here), or when it wants to reverse the lower court decision. If the Court denies property owners even minimal protection under the Due Process Clause, it would further reinforce the second-class status of constitutional property rights in current jurisprudence, as well as impose needless hardships on numerous property owners.

However, there is a small ray of hope: This is one of the rare issues where newly confirmed Justice Sonia Sotomayor is a strong supporter of property rights. In Krimstock v. Kelly, a 2002 opinion she authored while a Second Circuit judge, Sotomayor struck down a New York City law very similar to the Illinois statute challenged in Alvarez. I discussed Krimstock in more detail in this June post, and in my Senate Judiciary Committee testimony on Sotomayor's record on property rights. Judge Posner's Seventh Circuit opinion in Alvarez actually cites Krimstock as a precedent supporting his decision. Hopefully, Justice Sotomayor will stick to her guns and provide a much-needed vote for property rights in this case.

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