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Wednesday, July 15, 2009
Law Review Essay on Judge Sotomayor and Sports Law

Connecticut Law Review will be publishing an essay I've written on Judge Sotomayor and two of her most important sports law decisions: Silverman v. Major League Baseball Player Relations Committee and Clarett v. National Football League.

The essay also explores how Judge Sotomayor’s opinions and judicial philosophy may impact other emerging sports law disputes, including whether a player could successfully challenge the NBA's eligibility rule.

Here is an excerpt:

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Politicians and commentators are vigorously debating the judicial philosophy of federal appeals Judge Sonia Sotomayor, whom President Barack Obama has nominated to succeed retiring Justice David Souter on the United States Supreme Court. They are pouring through Judge Sotomayor’s opinions, speeches and other writings, examining and sometimes cherry-picking her words and expressions. Competing sets of beliefs, ideas, and attitudes will gradually be offered to explain Judge Sotomayor’s legal reasoning.

Critics of Judge Sotomayor have already championed an alleged weakness: she crafts her opinions to advance progressive agendas, with wavering adherence to actual law. Proponents of this viewpoint cite President Obama’s comment that he selected Judge Sotomayor partly because of her “compassion,” with the insinuation, in their view, that she bends fixed rules in order to aid disadvantaged litigants. Still others chastise the quality of her logic as overlooking or obscuring substantive legal issues. At their core, these criticisms attempt to impugn Judge Sotomayor as unfit for the Court.

As this Essay explores in Parts I and II, such criticisms are countered by Judge Sotomayor’s role in resolving two notable sports law disputes. In assessing whether Major League Baseball (“MLB”) owners could unilaterally impose new labor conditions on MLB players during the 1994 baseball strike and whether Ohio State University sophomore Maurice Clarett was obligated to wait three years from the completion of high school to become eligible for the National Football League (“NFL”) draft, Judge Sotomayor invoked traditional, arguably inflexible, applications of federal labor law. In fact, from the lens of each case’s least advantaged party, her opinions may have seemed bereft of “compassion” . . .

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Hope you have a chance to read a draft of the piece on SSRN.


This judge is an unusal person. She can be one who strictly adheres to the law or one who adjudicates completely on emitions and a desire to help those who are minorities in total disregard to the law.

In the end, I was hoping for someone who was less of an activist and more of a judge. On the other hand, she is replacing an activist and countering one on the right- Alito.

Blogger BLAZER PROPHET -- 7/15/2009 5:50 PM  

Is she unfit? I’m not sure...
Some of her comments the last 10-15 years show cause to at least ask the question without being called a bigot or a racist, no?

So far Senator Graham has been the most spot on:

I'm pretty well convinced I know what you're going to do. You're probably going to decide cases differently than I would. So that brings me back to, what am I supposed to do knowing that?

I don't think anybody here worked harder for Senator McCain than I did, but we lost, and President Obama won. And that ought to matter. It does to me.

Now, what standard do I apply? I can assure you that if I applied Senator Obama's standard to your nomination, you -- I wouldn't vote for you, because the standard that he articulated would make it impossible for anybody with my view of the law and society to vote for someone with your activism and background when it comes to lawyering and judging…Now, there was a time when someone like Scalia and Ginsberg got 95-plus votes. If you were confused about where Scalia was coming down as a judge, you shouldn't be voting, anymore than if you were a mystery about what Justice Ginsberg was going to in these 5 percent of the cases. That is no mystery.

Anonymous Anonymous -- 7/15/2009 9:19 PM  


Nice job with the essay, it was an enjoyable read. I thought you made an interesting connection between Judge Sotomayor's opinion in Silverman and the criticism she has received regarding prioritizing judicial compassion over adherence to the law. I hadn't thought of Silverman in that light before.

In Judge Sotomayor's defense, some might argue that the owner's competitive balance concerns weren't particularly credible in 1994-95, as competitive imbalance really didn't begin to manifest itself in league standings until the late-90s and early-2000s. For instance, Montreal was running away with the NL East at the time of the 1994 strike, and Pittsburgh had recently won three straight division titles, while the Yankees hadn't visited the playoffs in over a decade. In any event, though, it is an interesting insight.

I also noticed the reference in the essay to your forthcoming article in the Yale Law Journal considering the potential implications of the American Needle case. Congratulations on an outstanding placement. Please do let us know when you are ready to make a draft publicly available, I very much look forward to reading the article.

Anonymous Nathaniel -- 7/16/2009 9:43 AM  


I really appreciate those nice words. I've found your sports law scholarship to be tremendously insightful, and look forward to reading more of it. Also, congrats on landing the professor position at the University of Georgia -- that is great news. I look forward to posting a draft of the Yale piece at some point and will be interested in your comments and reactions.

Blazer and Anonymous,

Thanks for your comments. It does seem that recent Supreme Court nominees--Roberts, Alito, and now Sotomayor--have ducked some of the Senators' questions. I'm not sure whether nominees were more revealing of their ideologies in previous confirmation hearings, but I believe they were--or at least they were until Robert Bork's hearing in 1987, where his candor didn't seem to help him.

Blogger Michael McCann -- 7/16/2009 3:44 PM  

It is a great ideas an info so for,In my point of view judicial philosophy and the otomayor’s opinions is absolutely right.The order will be deemed to be an English contract.

Anonymous Anwalt -- 7/20/2009 2:46 AM  

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