Tuesday, May 26, 2009

Obama Selects Judge From First Round of 'Tasini' Case

This morning's news is that President Obama is about to nominate Judge Sonia Sotomayor to the Supreme Court vacancy created by the retirement of Justice David Souter. There are several connections to our case.

Sotomayor, as a district court judge, in 1997 issued the original decision in the Tasini v. Times case: she interpreted Section 201(c) of the Copyright Act as favoring the publishers', not the freelance writers', position. In 1999, the Second Circuit Court of Appeals reversed Sotomayor. In 2001, the Supreme Court upheld the Second Circuit.

Sotomayor now herself sits on the Second Circuit, whose 2007 sua sponte ruling on jurisdiction in our case -- a position opposed by both the settlement parties and the objectors -- is at the High Court. Sotomayor was not part of the three-judge panel specifically assigned to our appeal. But even so, my guess is that, if confirmed by the Senate for the Supreme Court, she would recuse herself from consideration of Reed Elsevier v. Muchnick.

Another worthy from Obama's short list who would have had to recuse herself, had she been chosen, is Pamela S. Karlan, founder and director of the Stanford Law School Supreme Court Litigation Clinic, who is co-counseling with objectors' attorney Charles Chalmers before the Court.


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