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."

Fast forward to Twombly and Iqbal. Let's look at what I contend is the Court's second major encroachment on the rules making process. In 2008 and 2009, the Supreme Court's decisions in these two pleading cases turned the liberal notice pleading philosophy, if not the letter, of the FRCP on its head. For decades, the idea that a plaintiff need plead only a "short, plain statement" showing entitlement to relief, meant just that - enough to start the litigation ball rolling; just enough to let the defendant know what it was being sued for so it could answer and mount a defense. The idea was to reduce the role of pleading so that the parties could take discovery of each other and third parties and have the case resolved on the merits through settlement or trial.

The idea that a plaintiff's claim be "plausible" was pushed back by Twombly and Iqbal from the post-discovery, summary judgment stage to the pleadings stage. When I wrote about the summary judgment trilogy decades ago, I failed to grasp that the Court had effectively amended Rule 56 outside of the formal Rules Enabling Act rules making process. Indeed, the Advisory Committee recently finally caught up with the Supreme Court by amending Rule 56 to essentially codify the 1986 Trilogy. When Twombly and Iqbal were decided, it was impossible to ignore what had really happened: the Court was amending Rule 8. The majority could say that it was simply interpreting the meaning of the word "show" in Rule 8 -- as in the plaintiff's "short, plain statement" must "show" that the pleader is entitled to relief. However, hundreds of law review articles would not have been written discussing these cases if the Court had not done something huge. And, there would have been no need for the Duke Conference in May 2010--yes it also focused on the costs of discovery, especially e-discovery-- if the Court had simply provided a bit of meat to the bones of Rule 8. Bills have been proposed to legislatively overturn the decisions. What should the REA rules makers do-- like Rule 56, should they propose amendments to Rule 8 to codify the result? Leave it to Congress? Just leave it alone?

Now, we see the same scenario playing out post-Wal-Mart. For the third time, the Supreme Court has taken the bull by the horns. Class actions are still perceived to be a huge problem by defense interests. CAFA gets all the class actions into federal court. And now, it will be even harder to get classes certified than ever given the Court's stringent approach to the Rule 23(a) commonality requirement. The Court has effectively amended the class action rule. As some U.S. Senators did in the wake of the Court's other notorious class action case this Term (AT&T Mobility v. Concepcion) in which the Court held that the Federal Arbitration Act preempted any state laws barring class action waivers on unconscionability grounds, there will be bills seeking to restore the pre-Wal-Mart conception of "commonality" for Rule 23(a) purposes and to allow back-pay as an additional remedy in the context of Rule 23(b)(2) class actions seeking injunctive relief. We will see the civil rules Advisory Committee wondering how or whether to respond in some way.

My take here is that whether one is pro-plaintiff or pro-defendant as a general matter, we all ought to be concerned about the approach the Supreme Court is taking to procedure generally and the Federal Rules of Civil Procedure specifically. With the Rules Enabling Act, Congress has provided an excellent process that provides for a deliberation that takes into account the views of all the users of the federal judicial system, and allows for empirical study of the issues facing litigants and the courts. It is true that the Supreme Court is the ultimate judge of the rules that are proposed via that process, and is free to reject them. But the process does not give the Court the right to write the rules any way it sees fit apart from that process. The Court ought to let the Advisory Committee and the REA rules making process do its job. So too should Congress. Whether one agrees or disagrees with the folks in Congress who want to overturn the pleading cases and Wal-Mart, it is perhaps even worse to let members of Congress who are not expert in judicial rule making as opposed to general legislation undertake the task. Congress does a poor enough job drafting jurisdictional statutes. Think CAFA-- but at least that was well-within Congress' province. Congress has enacted a rule making process, and it also should let the REA process provide the solution, whatever that may be. Whether we are plaintiff-oriented and concerned about Rule 8 or Rule 23, or defense oriented and concerned about Rule 11 [see the Lawsuit Abuse Reduction Act ("LARA")], we ought to let the experts do their job.