Wal-Mart - Beyond Employment Discrimination Law

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 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 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."

The bad news (and good news) about your medical privacy

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.

Four Loyola professors on SSRN top 25 list

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.

Wal-Mart and the Future of Employment Discrimination Class Action Law

By Associate Dean 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.

American Electric Power Co. v. Connecticut;: Supreme Court Reaffirms EPA Authority to Regulate Greenhouse Gases

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).

Given the Court's 5-4 split on standing to raise a climate change challenge in Massachusetts v. EPA (2007) and the retirement of that opinion's author, Justice Stevens, the current case seemed like potentially fertile ground for a retrenchment on standing. However, the Administration's gamble seems to have paid off; conservatives did not get enough votes to decide the case on standing grounds. (Nor did the defendants succeed in luring the Court into expanding the narrow political question doctrine into a jurisdictional bar to climate change litigation.) Having initially been on the Second Circuit panel, Justice Sotomayor did not participate in the Supreme Court decision, leaving eight members to split evenly on the issue of standing. The opinion notes without elaboration that the Court's four to four division on standing leaves intact the Second Circuit opinion on that issue (and its general exercise of jurisdiction).

Loyola's 6th-annual Journalist Law School now underway

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.

The real victims of election ID laws

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 restrict the 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.

The public supports restrictive ID rules because most Americans have ID. We think nothing of showing ID for conveniences, so we think nothing of showing it as a condition for a basic constitutional right. Because we have the correct ID, and our friends have the correct ID, we think every citizen has the correct ID.

The facts, however, say different. Most of these recent laws demand current, government-issued photo ID with an expiration date. Yet 11 percent of voting-age citizens do not have this sort of ID, according to reliable studies. The estimated impact on actual voters ranges from 1 percent to 12 percent, depending on the state. Even using the most conservative figure, this amounts to more than 1.6 million voters nationwide.

Some are hurt more than others by this. Roughly 18 percent of seniors don't have the right ID. Only 5 percent of Anglo voters but at least 10 percent of African-American voters and 11 percent of Latino voters don't have the right ID.

Exploding the New Conduct-Status Distinction: Why Judge Walker's Sexual Orientation and Same-Sex Relationship are One and the Same

By 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.

This distinction between gay identity and same-sex relationships appears to be the new conduct-status distinction harming lesbians and gay men, supplanting its predecessor that distinguished between same-sex sex and sexual orientation. Bowers v. Hardwick, the U.S. Supreme Court decision upholding Georgia's anti-sodomy law, treated same-sex sex as mere conduct, undeserving of constitutional protection. Lawrence v. Texas overturned that ruling and in the process exploded the distinction between same-sex sex and gay identity. For Justice Kennedy, who wrote the majority opinion, and Justice O'Connor, who wrote a concurrence, a prohibition on same-sex sex (conduct) undeniably targeted lesbians and gay men based on their status. Accordingly, the Court rejected the conduct-status distinction that had served to deny lesbians and gay men constitutional protection for so long.

Prof. Aprill's law review article on dictionary citations referenced in NY Times story

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."

Prof. Justin Levitt's All About Redistricting gets a nod from the Washington Post

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."

Disability Rights Legal Center debuts Kirkland & Ellis Justice Fellowship

The Disability Rights Legal Center just announced the creation of The Kirkland & Ellis Justice Fellowship, a two-year position to head up the center's newly formed Community Advocacy Program. The goal of the program and the fellowship is to provide members of the disability community with critical information and resources about their civil rights under the Americans with Disabilities Act and other laws.

Given the complexity of legal issues, the DRLC is creating its first-ever fellowship to address the myriad of complex legal issues facing people with disabilities today. The fellowship will also give the next generation of attorneys an opportunity to engage in social justice work at the beginning of their legal careers. The fellowship is named in honor of Kirkland & Ellis LLP in recognition of the DRLC's long-standing pro-bono and co-counseling relationships with the firm, and for Kirkland's generous funding of this new fellowship.

The fellow will work at DRLC's Los Angeles office with other staff in the program, as well as DRLC's clinical law students and pro bono attorneys. He or she will also be responsible for outreach to legal organizations, service providers and other attorneys in order to facilitate meaningful referrals for callers and educate the community about DRLC's services. The goal of the program and the fellowship is to provide the disability community with critical information and resources that will connect them with relevant service providers, provide limited representation on smaller legal matters, facilitate self-advocacy and identify systemic issues appropriate for DRLC impact litigation. Importantly, the fellow will develop at least one area of expertise, such as housing rights for people with disabilities, rights of people who use service animals, the education rights of youth in the delinquency system, or the intersection of race and disability. The fellow will give trainings and write articles in this area of expertise to further the civil rights of people with disabilities in the disability and legal communities. Interested applicants should apply no later than July 8th via DRLC's website.

Prof. Justin Levitt launches All About Redistricting website

Associate Professor Justin Levitt, a national expert on redistricting, has launched All About Redistricting, an online guide to the process of drawing electoral district lines. The site is at redistricting.lls.edu.

All About Redistricting explains state-by-state the intricacies of the process with easy-to-digest breakdowns of state rules, summaries of procedures and links to relevant state websites. A series of interactive maps (example at right) guide users through the process. Levitt, a prolific scholar whose works include A Citizens Guide to Redistricting, includes his analyses of everything from current litigation to reform initiatives. Redistricting is underway nationwide in a process that will continue through 2012.

"This website is designed to be a one-stop easy-reference site for all sorts of redistricting information," said Levitt. "For each state's congressional and state legislative districts, we track the current status, describe who draws the lines and the rules for when and how the lines are drawn, and follow redistricting litigation from start to finish. Maps and charts quickly put the states in national context. And the site gathers other resources explaining how the process works now and how it might work in the future, all together in one place."

Levitt has served in various capacities for several presidential campaigns, including as the National Voter Protection Counsel in 2008. He coordinated the amicus response in Crawford v. Marion County Election Board, a Supreme Court challenge to a state's voter ID requirements. Prior to joining the Loyola faculty, he was counsel at the Brennan Center for Justice. A magna cum laude graduate of Harvard Law School, Levitt also teaches Constitutional Law at Loyola Law School.

Prof. Yxta Murray writes about Mark Zuckerberg's new kill-it-yourself diet

By Professor Yxta Maya Murray

Facebook CEO Mark Zuckerberg recently emailed Fortune magazine with the news that this year he is undertaking a personal quest to eat only meat that he kills himself. As of this writing, he's reportedly axed a chicken, a pig, a goat, and -- in a particularly Woody Allenesque gesture -- a lobster, the last of which was "boiled alive."

Zuckerberg packages his slayage as a brand of gastronomical "gratitude" that is linked to whole-foodist-cum-low-carbon-footprinty aspirations. Most of the (acidic, hilarious) commentary has matched this reading of Z's "me kill, me eat" carnilosophy, and has taken him to task for being a bad vegetarian. Laurel Miller of Huffpost Food accuses Z of being a possibly unhinged throat-slasher of baby livestock. Lynn Crosbie of the Globe and Mail accuses him of "gross eco-crimes."

Read the complete piece at Zocalo.

For veterans with mental illnesses, court reluctantly steps in where Congress should have

By Associate Dean Michael Waterstone

A recent Ninth Circuit decision is part of a long-standing debate about the difference between our stated commitment to take care of disabled veterans, and what really happens on the ground.

A group of veterans sued the Department of Veterans Affairs, seeking declaratory and injunctive relief to remedy delays in the provision of mental health care and the adjudication of service-connected death and disability compensation claims by the VA. The Veterans argued that these delays violated their due process rights to receive the care and benefits they are guaranteed by statute. The case dramatically demonstrated the nature of the delays: for example, it takes an average of more than four years for a veteran to fully adjudicate a claim for benefits (during which time many are mooted by deaths). The court was explicit that these delays were not in keeping with our country's stated commitment to veterans, writing "on an average day, eighteen veterans of our nation's armed forces take their own lives. ... Among all veterans enrolled in the VA system, an additional 1,000 attempt suicide each month. Although the VA is obligated o provide veterans mental health services, many veterans with severe depression or post-traumatic stress disorder are forced to wait weeks for mental health referrals and are given no opportunity to request or demonstrate their need for expedited care. For those who commit suicide in the interim, care does not come soon enough."

So the VA is a mess (which is not new news). What to do about it? The court struggled here, noting that "we would have preferred Congress or the President to have remedied the VA's egregious problems without our intervention when evidence of the Department's harmful shortcomings and its failure to properly address the needs of our veterans came to light years ago." The court was also cognizant that it was not really the ideal branch of government to address these problems. But ultimately, the court viewed these delays as violating the plaintiff's constitutional rights "to be free from unjustified governmental deprivation of property - including the health care and benefits that our laws guarantee veterans upon completion of their service."

Center for Restorative Justice to host event on youth offenders and their victims

By Seth Lennon Weiner, Co-Director, Loyola's Center for Restorative Justice

he U.S. Supreme Court's recent ruling in Brown v. Plata brings into sharp focus the current dilemma facing California's criminal justice system. With prison overcrowding currently at alarming levels, California must find a careful balance between protecting the Eighth Amendment guarantees to prisoners and the public safety of the state. Considering Philadelphia's less than positive experience with a court-ordered reduction in prison populations during the 1990s, many Californians have expressed their anxiety and doubt over the High Court's ruling. The ruling, however, highlights more fundamental questions about our current criminal system in America: Where should the focus of criminal law be and around whom should the justice system be centered?

Loyola's Center for Restorative Justice (CRJ) believes that the answer to these questions requires a transformation of our current criminal justice system. Unlike our current system where the offender is the focus of the criminal proceeding, restorative justice seeks to transfer the focal point to the victim. Currently, California replaces the victim and seeks retribution on behalf of the victim and community at large. A system based on restorative principles would shift the focus of criminal proceedings from sanctions to restitution in order to make the victim whole and the offender directly culpable for the harm caused.

Restorative justice is not only a way of holding offenders accountable but, more importantly, is an idea that seeks to change the behavior of offenders and mitigate the harm caused to victims. By recognizing and addressing the harm caused to the victim as well as the harm that caused the offender to commit the offense, restorative justice takes a comprehensive approach that promotes healing and justice between the victim, the offender, and the community.