The Sotomayor Wrapup: A Guide to the Nominee's Arbitration Gravitas (Web)
May 29, 2009
This week’s posts, all linked below, about President Obama’s first nominee to the U.S. Supreme Court, Sonia Sotomayor, show the judge’s thorough arbitration experience.
Sotomayor, who currently sits on the Second U.S. Circuit Court of Appeals in New York, has dealt with Federal Arbitration Act and international ADR issues throughout her career. She has tackled arbitration at a variety of levels—in recent appellate cases, in opinions stretching back to her days as a federal district court judge, and in practice, as demonstrated in a history provided by the judge’s own words.
The judge has been there, seen that, and done that in the arbitration world.
Whether this is good for arbitration practice or not depends on where you’re sitting. She has had no problem confirming big arbitration awards in commercial cases. She has ruled on and worked on international arbitration cases. She has shown deference to the FAA’s preference for arbitration over litigation when allegations over a tribunal member’s hasty actions were called into question. And she has backed nonsignatory arbitration, reversing a lower court.
At the same time, she has joined an opinion that declined a credit card issuer’s request to compel arbitration against its merchants because, among other reasons, she believed that an antitrust claim against the issuer would be lost in an ADR process. She also has allowed a putative class of Internet software downloaders to avoid arbitration in their acquisition of software that the plaintiffs said invaded their privacy.
In keeping with much of judicial FAA analysis, Sotomayor’s a hyper-constructionist. Her opinions often are detailed mini-treatises on how the statute, which is more than 80 years old, operates in the business world.
It’s impossible to say what will come before the Court during the Sotomayor years, but given her ADR familiarity, it’s not likely that she would try to stem the tide of cert acceptances that has resulted in five arbitration opinions in the past two terms.
Here are links to the summaries of Sotomayor’s work posted on this site this week:
Arbitration Friendly? Obama Nominates New York Federal Judge with an ADR History (May 26).