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."

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).

A new era for exigent circumstances

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.

The lower state courts had found that exigent circumstances justified the warrantless entry. Traditionally, police officers cannot enter a home without a warrant, no matter how strong the belief that evidence or contraband was contained within the home, subject to a few narrow exceptions. One exception is exigent circumstances. On a very basic level, the exigent circumstance exception to the warrant requirement makes perfect sense: If there is no time to get a warrant, it should not be required that the police obtain one. The simple example I give my students is this: If a police officer is walking the beat, and hears gunshots fired from an apartment, surely we want that officer to rush into the apartment rather than head for the precinct to procure a warrant. But once you get beyond an example like this, tough questions abound. One of the most widely litigated issues among the lower state and federal courts was whether the exigency exception applies when the police "created their own exigency." For example, it was argued here, and the Kentucky Supreme Court agreed, that the police cannot deliberately create exigent circumstance with the bad-faith intent to avoid the warrant requirement, and moreover, even without bad faith, the police cannot rely on exigent circumstances if it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances. Applying that standard, the Kentucky Supreme Court held that although there was no bad faith here, it was reasonably foreseeable that the occupants would attempt to destroy evidence when the police officers chose to knock on the door and announce their presence. Hence, the police created their own exigency and the warrantless entry was, therefore, unconstitutional.

Introducing 'The Headline Club' summer series

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