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."