Results tagged “Headline Club”

June 28, 2011

Georgene Vairo photo

By Professor Georgene Vairo

This is another installment in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

My dear colleague, Michael Waterstone, already has weighed in on the Supreme Court's decision in earlier post. As a procedure geek, I want to go down a different road and to talk a bit about Wal-Mart's place in the (r)evolution of the Federal Rules of Civil Procedure, and the rules making process. For my purposes it is necessary to dwell simply on two aspects of the opinion: the Court's discussion of commonality for Rule 23(a) purposes, and its restriction of monetary relief in the context of a Rule 23(b)(2) class action seeking injunctive relief.

First, this is the third time in relatively recent times that, in a major way, the Supreme Court has adopted such a radically different view of a Federal Rule of Civil Procedure that it amounts to an amendment of the rule outside of the Rules Enabling Act ("REA") process. See 28 U.S.C. § 2071. Starting in the 1970s, defense interests began to really scream about the costs of civil litigation. So, the Advisory Committee on the Civil Rules, appointed by the Chief Justice to adopt and amend the rules pursuant to the REA, went about tinkering [Amendments to the Federal Rules of Civil Procedure, 85 F.R.D. 521, 523 (1980) (Powell, J., dissenting from Court's approval of 1980 Amendments regarding discovery).] with the discovery rules. In 1983, the Advisory Committee proposed more than tinkering rules amendments to Rules 11-- the sanctions rule, Rule 16-- the pretrial conference rule, and Rule 26-- the general discovery rule, to help reduce costs and delay. Did any of these amendments change anything? Yes, but they were not enough for some. In 1986, the Supreme Court entered the fray directly for the first time. In its "Summary Judgment Trilogy" [Celotex Corp. v. Catrett, Anderson v. Liberty Lobby, and Matsushita Elec. Industrial Co. V. Zenith Radio] it adopted an approach to Rule 56 that, while sensible, overturned the prevailing view that summary judgment ought to be granted sparingly because a plaintiff's right to jury trial was at stake. The Court piled on when it decided General Electric Co. v. Joiner and Kumho Tire Co., LTD v. Carmichael], the Court made the district court a gatekeeper-- keep out the junk science that plaintiffs use to defeat motions for summary judgment. Although empiricists disagree as to the extent to which the 1986 and Daubert trilogies resulted in more summary judgments or not, they certainly sent a message.

I said above that the 1986 Trilogy was "sensible" because I believed in what Justice Rehnquist said in Celotex v. Catrett --summary judgment should be "put up or shut up" time. If a plaintiff has had enough time for discovery, and it is apparent that it lacks evidence on a material issue of fact, there really is no reason for a trial. Although I have always bought into that notion, there was much loose and troubling language in the Trilogy cases. To paraphrase: "District courts ought not evaluate the evidence-- that is the province of the jury-- but they ought to take into account the quantum and quality of the evidence." Is that not weighing? In one of the cases (Matsushita), an antitrust case, the Court said that when deciding whether to grant summary judgment, the court ought to look at whether the plaintiff's claims are "plausible."

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June 20, 2011


By Associate Professor Katherine Trisolini

This is another installment in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

Today the Supreme Court handed down its decision in American Electric Power Co. v. Connecticut. Justice Ginsburg's opinion holds that the Clean Air Act displaces federal common law claims against power companies for contributing to the public nuisance of global warming. The decision reverses a Second Circuit case holding that state, local, and nonprofit plaintiffs had succeeded in stating a claim against five fossil-fuel fired power companies under federal common law. The Second Circuit case included a lengthy discussion supporting plaintiffs' standing and rejecting the trial court's conclusion that climate change presented a nonjusticiable political question.

While several headlines have focused on the Supreme Court's "rejection" of Connecticut's challenge, such attention to the formal outcome misses the real import of the case. The opinion bolsters EPA's authority to tackle greenhouse gases.

The Obama Administration had gambled that the Court would decide the case on the relatively narrow grounds that EPA's Clean Air Act authority to regulate greenhouse gas emissions from power plants displaces federal common law nuisance actions (leaving those who seek to reduce power plant emissions via federal law to first petition EPA rather than the courts).

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May 23, 2011


By Professor Marcy Strauss

This is the first in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

The Supreme Court's 8-1 decision in Kentucky v. King has been described by some bloggers, pundits and scholars as being a serious blow to the Fourth Amendment and its protection of the privacy of the home, and by others as a narrow, fairly insignificant decision. The truth, as it often does, may lie somewhere in between predictions of doom and irrelevancy.

The issue in King was one that the lower courts had grappled with: does the "exigency exception" to the warrant requirement apply when the police "create their own exigency?" (and what does it mean to create the exigency?). In King, police officers pursued a suspected drug dealer into an apartment complex, briefly lost sight of him, but detected the very strong odor of burnt marijuana coming from behind one of the doors. At this point, the officers had several options. Instead of pursuing one option -- staking out the apartment and going for a warrant -- the officers banged on the door and announced their presence. Hearing "people moving and things being moved" led the officers to believe that drug-related evidence was about to be destroyed, and thus, the police made a warrantless entry into the home. As a result of that entry, they didn't find the man they were looking for originally (he had, in fact, gone in a different apartment), but did find marijuana and cocaine.

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May 23, 2011

Michael Waterstone

Following up on our successful "11 on 11" series in which Loyola faculty weighed in on the top issues in their fields this year, this summer we will be starting a new series, "The Headline Club." One of the things that makes our academic community unique is how involved our colleagues are in real-life issues. Often these are issues that play out in the public eye. "The Headline Club" will feature blog posts by our colleagues on hot topics taken from the headlines. These will include everything from Supreme Court opinions, to legal twists on news stories, to how their scholarship relates to something on the front page.

The introductory post in this series will be from my colleague, Marcy Strauss, who will discuss the Supreme Court's Fourth Amendment case Kentucky v. King.

Thanks again for visiting our site, and we hope you continue to visit us often this summer!

-Professor Michael Waterstone, Associate Dean for Research and Academic Centers


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