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Dana Muir
  Dana Muir

Justice Sotomayor: A Boon for Business?

12/10/2009 --

Professor Dana Muir and colleagues look at the judicial track record of the Supreme Court's newest justice -- and what it may mean for business.

ANN ARBOR, Mich. — When it comes to business, new Supreme Court Justice Sonia Sotomayor exhibits no liberal or conservative bias. Instead, she adheres closely to precedent, according to research led by a Ross School of Business professor.

Dana Muir, the Thurnau Professor of Business Law at Ross, and colleagues believe that Sotomayor will be neither pro- nor anti-business in her general approach to deciding cases at the Supreme Court.

"Her tenacious commitment to anchoring her decisions in existing bodies of law should comfort those in the business community who are concerned that Justice Sotomayor's appointment will increase judicial activism, and disappoint those who hope that Justice Sotomayor will tilt the court in a particular ideological direction," the authors wrote in an article in the fall issue of the Virginia Law & Business Review.

Muir and colleagues David Baumer (North Carolina State University), Stephanie Greene (Boston College), Gideon Mark (University of Maryland), and Robert Thomas (University of Florida) examined Sotomayor's decisions across five areas of law pertaining to business, focusing primarily on her decisions during her tenure at the Second Circuit Court of Appeals.

The five areas include: antitrust law; securities law; employment law; ERISA (Employee Retirement Income Security Act of 1974) law; and intellectual property decisions in the areas of copyright and patent law.

In deciding cases that affect business, their analysis supports the view that Sotomayor proceeds in a methodical way, carefully utilizing established and structured approaches to statutory analysis.

"This was true in technical areas such as antitrust and ERISA. It was also true in employment law decisions where some commentators may have expected to see a more policy-focused approach," the authors wrote. "The one exception, if one would call it that, is that Justice Sotomayor's decisions and the opinions she has authored show significant deference to government actors.

"ERISA cases where she relied on a variety of Department of Labor authority illustrate this proclivity. Her deference to government is also observable in the securities cases where she wrote that the SEC has substantial oversight authority and sentenced white-collar criminal defendants to prison terms more frequently and for longer periods of time than was the average for her fellow judges in the Southern District of New York."

Muir and colleagues said that while Sotomayor adheres to precedent, undertakes detailed analysis where appropriate, and shows deference to government actors, "it is clear that fairness and appropriate process can be considerations in her opinions."

In fact, they found that Sotomayor's attention to fairness extended into her approach to awarding damages. For example, she often reduced awards in copyright and ERISA decisions to better align them with plaintiffs' actual damages.

Overall, Muir and colleagues said their analysis provides evidence not only that Sotomayor adheres closely to precedent but that her decisions in business law evade simplistic labels such as liberal or conservative.

"Her commitment to fair play and balance suggests that she will provide compassion while authoring decisions that adhere to the rule of law," the authors wrote. "We expect the Justice to pen thoughtful and unpretentious business decisions notable more for their content than their rhetoric."

For more information, contact:
Bernie DeGroat, (734) 936-1015 or 647-1847,