I have found myself reluctant to take a position on the nomination of Sonia Sotomayor to the Supreme Court. I’ve found arguments both pro-Sotomayor and anti-Sotomayor to be annoyingly simplistic. Sotomayor supporters, on the one hand, swoon because of her ethnic and cultural background. Sotomayor opponents on the other hand, try to make her ethnic and cultural background an issue as well, with Rush Limbaugh purposefully mispronouncing her name several times every time he says it, in order to emphasize her foreign nature, though she’s not at all foreign.
Sotomayor’s ethnic and cultural background is easy for the media to talk about, but it’s not really what’s at issue. Sotomayor will not be confirmed to the Supreme Court because of it, and she her confirmation will not be blocked because of it either. What matters is Sotomayor’s approach to interpreting the law.
This morning, I found an example of Sotomayor’s approach to interpretation in a case involving an online software contract, and it’s the first opinion of hers that has genuinely drawn my interest. TechLaw writes of the case,
“Judge Sotomayor wrote the court’s 2002 opinion in Specht v. Netscape Communications Corp., an important online contracting case. In Specht, the Second Circuit declined to enforce contract terms that were available behind a hyperlink that could only be seen by scrolling down on a Web page. A ‘reasonably prudent’ user would not have learned of the existence of the terms before responding to an invitation to download free software, Judge Sotomayor wrote.”
In an evaluation of Sotomayor, this case exhibits a temperament that pays attention to the evolution of context for legal relationships. Sotomayor carefully considered the medium of the Internet (specifically, the World Wide Web – what an awkward phrase now), and the way that people actually work with that medium. She was able to recognize what most habitual users of the Internet have an intuitive sense of, that people who visit a particular web page cannot be reasonably expected to read every word on that page. That’s not what a web page is for. People can be reasonably expected to read every word in a written legal contract, but a small legal statement in the footer of a web page probably won’t be read, and does not create a binding legal contract.
If a judge were to take the approach of those who can only understand the law as it applies to the world of the early United States, when men wore powdered wigs and the printing press was still a cutting-edge technology of communication, then the judge would conclude that a reader who fails to read every word on a web page that might relate to the action of clicking an on-screen button has been irresponsible and cannot plead ignorance. Sotomayor, however, was able to look at the interaction of a web site as it actually took place, and not how it would have taken place if Thomas Jefferson had been put in front of a computer screen for the first time.
It’s a small point in Sotomayor’s favor, but worthy of note as people consider her suitability for the Supreme Court. I prefer, given that the position is a lifetime appointment, to see a new Justice who has the ability to comprehend the way that human interactions change as the technologies that construct their social world evolve.