June 2011 Archives

June 28, 2011

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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. ยง 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 27, 2011

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By Associate Professor Aaron Caplan

On June 23, 2011, the U.S. Supreme Court issued its 6-3 decision in Sorrell v. IMS Health, Inc. I previously wrote about the case here. In the new decision, the Court invalidated a Vermont law that prohibited the sale and use for marketing purposes of pharmacy records that reveal doctors' drug prescribing practices without the doctors' permission. The Court viewed Vermont's law as a ham-handed attack on a particular type of commercial speech, so its ordinarily laudable free speech impulses kicked in. However, it failed to recognize the legitimacy of protecting informational privacy as a governmental goal, and indeed doubted that the law would even advance doctors' privacy. This surely comes as a surprise to doctors, who now find that data brokers have a constitutional right, at least in some settings, to buy and sell their information for commercial gain without their knowledge or consent.

The Court's decision contains mostly bad news for those who value individual control over the commodification of personal information. However, it leaves open the possibility that the real flaw in Vermont's law was not that it attempted to protect too much privacy, but that it protected too little.

THE BAD NEWS.

1. The Court revealed little understanding of why violations of informational privacy are troublesome. Evidence at trial showed that many doctors felt violated when they learned that pharmacies were selling information about the doctors' prescriptions to drug manufacturers behind their backs, alarmed that the manufacturers were secretly using the information to manipulate them during visits by pharmaceutical representatives, and outraged that the records could be used as a back-door method of determining their confidential and privileged advice to their patients. The biggest harm to privacy was not, as the Court seemed to think, that a pushy sales representative might come to a doctor's office. The harm was that doctors reasonably felt that their lives and livelihoods were under surveillance for the benefit of others. Overall, the Court showed little enthusiasm for informational privacy as a desirable component of a good society, and no recognition at all that it is a value of constitutional stature.

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June 27, 2011

Loyola Law School Professors Ellen Aprill, Jennifer Kowal, Katie Pratt and Ted Seto are among the top 25 U.S. tax professors as ranked by downloads on the Social Science Research Network.

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June 22, 2011

Michael Waterstone

By Professor Michael Waterstone

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.

On Monday, the Supreme Court decided Wal-Mart v. Dukes, reversing the Ninth Circuit's certification of a historically large class of women claiming sex discrimination against Wal-Mart. Employment discrimination lawyers have been eagerly awaiting the result in this case, realizing that either way, it would be determinative of the future of employment discrimination class actions (and maybe even class actions in other areas of law).

Other commentators whose views I respect have been quicker than me, and already weighed in on various parts of the Wal-Mart opinion - noting the Court's adverse reaction to the potential size and complexity of the class, the commonality analysis, and the Court's treatment of the social science evidence. Following up on an earlier post about this case, I write here to add my own voice to this chorus.

One issue in Dukes was whether this action - brought for injunctive relief, but also including claims for backpay - could be certified as a class action under 23(b)(2). This turned out to not be much of a fault line, as the Court unanimously held that claims for monetary relief may not be certified under Rule23(b)(2), holding that the claims for backpay were not incidental to the requested injunctive or declaratory relief. Fair enough: plaintiffs had tried to finesse this by not including claims for compensatory damages, which there was clear consensus was not enough. Future plaintiffs attempting reform litigation could choose to completely forego damage claims and focus on injunctive relief. Assuming some lawyer somewhere would take that case, but for the second part of the opinion - discussed below - this possibility would technically be open.

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June 20, 2011

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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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June 17, 2011

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The Journalist Law School (JLS), a program of Loyola Law School's Civil Justice Program, is now underway. More than 30 Loyola professors, along with top practitioners and prominent judges, are providing instruction on a wide range of legal topics during the four-day legal bootcamp.

Above: Professor Karl Manheim provides an introductnio to constitutional law.

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June 16, 2011

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Originally published in Politico June 14, 2011.

With ballooning deficits and substantial unemployment among the urgent problems confronting the states, many state legislatures spent their first days of the 2011 session attempting to restrictthe way that voters prove their identity at the polls.

Five states passed voter ID laws in 2011. The most stringent preclude citizens from voting a valid ballot unless they show specific documents. Opinion polls reveal that the public supports this idea. But those behind this effort have forgotten both their priorities and their obligation to safeguard the vote -- the most fundamental of constitutional rights -- not just for most U.S. citizens but for all.

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June 14, 2011


Doug NeJaimeBy Associate Professor Doug NeJaime

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.

In denying the Proposition 8 proponents' motion to vacate Judge Walker's ruling, Judge Ware clearly got it right as a matter of judicial conduct. But he got it right in another way -- one that's more subtle and yet more significant: Judge Ware rejected the proponents' slippery distinction between sexual orientation and same-sex relationships.

In seeking to vacate Judge Walker's ruling that Proposition 8 is unconstitutional, the Proposition 8 proponents argued that they weren't challenging Judge Walker's impartiality based merely on his sexual orientation; rather, they were bothered by his long-term same-sex relationship. A gay judge, they argued, could decide a marriage equality case; a gay judge in a relationship, on the other hand, could not.

In making this crafty argument, the proponents relied on a distinction without a difference. Sexual orientation is by definition a relational category -- one's sexual orientation can only truly manifest itself with regard to another person (or at least the idea of another person). Therefore, to argue that Judge Walker should recuse himself based on his same-sex relationship is the same as arguing that he should recuse himself based on his sexual orientation. Judge Walker enacts and lives out his sexual orientation by having a relationship with another man.

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June 13, 2011

Professor Ellen Aprill's law review article, "The Law of the Word: Dictionary Shopping in the Supreme Court," was cited in a New York Times column about dictionary citations in opinions. Below is an excerpt of the column, "Dictionary Citations by Justices Rise Sharply":

A decade later, Ellen P. Aprill, who teaches at Loyola Law School in Los Angeles, considered the implications of that finding in an article on "dictionary shopping in the Supreme Court."

"It may also be a surprise to the Supreme Court justices who look to dictionaries as authorities in construing statutes," she wrote in the Arizona State Law Journal, "that in good measure they are interpreting law according to The New York Times."

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June 10, 2011

Washington Post political blogger Aaron Blake Tweeted of Associate Professor Justin Levitt's All About Redistricting website: "Want to know the latest on redistricting in a certain state? An AWESOME tool: http://bit.ly/kb6eTk."

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