Administrative Note: Finals

The Colloquy is taking a brief respite for finals.  We will return next week with the first part of a two part piece by David S. Evans entitled Antitrust Issues Raised by the Emerging Global Internet Economy.

What Twombly and Mead Have in Common

By Amy J. Wildermuth[*]

[download pdf]

Introduction

The Supreme Court’s recent opinion in Bell Atlantic Corp. v. Twombly[1] has already had enormous implications for pleading requirements under the Federal Rules of Civil Procedure. As of early April 2008—less than a year after it was issued—Twombly had been cited in almost 5,000 cases.[2]  It also was an immediate—and continuing—source of much academic debate.[3]

I cannot help but notice a distinct parallel between Twombly and another opinion authored by Justice Souter, United States v. Mead.[4]  At first blush, these cases have little in common outside of their author: One was an antitrust dispute about what factual evidence must exist and be pled to defeat a Rule 12 motion on an alleged “parallel conduct” violation of Section 1 of the Sherman Act; the other was an administrative law case about the deference owed to agencies’ statutory interpretations that are not subjected to Administrative Procedure Act (APA) required process.  What brings this odd couple together?

The most obvious shared trait is that the Court appears to have fundamentally altered procedural law in both decisions.  That alone, however, does not mean much.  Changing the law, even significantly, is the Court’s prerogative.  The common denominator instead is the confusion one is left with after parsing both Twombly and Mead. It is one thing to know that the law has changed when the change—the new order, the new rule, the new way of operating—is clear.  But these opinions offer no straightforward answers. Rather, on key issues in both cases, the court offers a similar formula of circular directions: it begins with a fairly clear description of the general legal test to apply, but then proceeds to detail exceptions or additions that have the potential to swallow the general rule.

These two cases are different, however, in one important way: the Court’s ability to correct the confusion its decisions engender.  Even if the Court were interested in revisiting the question of the proper deference to afford agency interpretations, it would need to wait for a good vehicle to address the many uncertainties Mead has generated.  The confusion with respect to Twombly, however, can disappear quickly.  Acting under its powers to revise the Federal Rules of Civil Procedure, the Court could revise either Rule 8[5] or Rule 9[6] and thus immediately end the speculation regarding what Twombly means.

 

Sprint/United Management Co. V. Mendelsohn: The Supreme Court Appears to Have Punted on the Admissibility of “Me Too” Evidence of Discrimination. But Did It?

By Mitchell H. Rubinstein[*]

[download pdf]

Introduction and Background

Employment discrimination continues to infect many employers.[1]  However, finding the source of the infection has never been easy.[2]  This Essay discusses the use of “me too” evidence where parties, usually plaintiffs, seek to buttress their case by pointing to other employees who assert that they were infected by the same disease of discrimination. Even before the Supreme Court’s first decision discussing this critically important issue, Sprint/United Management Co. v. Mendelsohn,[3] the use of “me too” evidence was controversial.[4]  It is important to analyze this case because employment discrimination cases often turn on whether the plaintiff has been able to come up with an appropriate “comparator” who was treated differently than he or she was.[5]

In examining the significance of Sprint, it is also important to be aware of the general evidentiary environment that governs federal court litigation. Under Rule 401 of the Federal Rules of Evidence (FRE), there is a low threshold for the admissibility of evidence: the evidence in question has to “only slightly affect[] the trier’s assessment of the probability of the matter to be proved.”[6]  Additionally, as the Seventh Circuit explicitly stated, Rule 403 “tilts in favor of admissibility.”[7]  Because the search for truth is imperiled by the exclusion of what would otherwise be relevant evidence, courts are required to exclude evidence under 403 only “sparingly.”[8] Thus, under this standard, courts are required to give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.[9]

Another significant evidentiary doctrine is that the law of evidence distinguishes between the admissibility of evidence and the weight that such evidence is too be afforded.[10]  Stated somewhat differently, anecdotal evidence need not be dispositive to be relevant and therefore admissible.[11]

It is also clear that the context of the “me too” evidence will also matter. This is because context almost always matters when interpreting witness statements.[12]  Therefore, it may not even be possible for the Court to ultimately lay down a specific rule applicable to all cases.[13]  One thing that is clear, however, is that these general evidentiary principles tend to support the introduction of evidence.  But these principles only provide a rough framework for analyzing whether “me too” evidence should be admissible.

There are several easy categories of “me too” cases.  Those categories include attempts to prove the presence of a culture or atmosphere of discrimination,[14] attempts to establish the existence of a hostile work environment,[15] and attempts to show a pattern or practice of discrimination[16] where the “me too” evidence concerns the same decisionmaker as the plaintiff.[17]  However, the answer to the question of whether such evidence can be admitted where, as in Sprint, different supervisors are involved is not easy.

Though scholars have characterized the Sprint decision as a “judicial punt” because of its remand on procedural grounds,[18] this Essay asserts that Sprint will turn out to be significant to the developing employment discrimination jurisprudence.  This is principally because of dicta in Justice Thomas’ unanimous opinion, which implicitly approves of the use of such evidence. While it may be difficult to precisely define the line between admissible and inadmissible “me too” evidence, it is clear that the Court rejected any type of rule that would flatly prohibit the introduction of “me too” evidence simply because the putative witnesses did not share the same supervisor as the plaintiff.

This Essay asserts that the use of “me too” evidence is likely to significantly increase as a result of the notoriety of the Sprint decision and the increasing importance of comparative-type evidence to employment discrimination litigation.[19]  Part I of this Essay discusses the state of affairs involving “me too” cases leading up to the Sprint decision.  Part II then discusses the Sprint decision itself and explains why the Supreme Court decision is significant.[20]  This Essay concludes by postulating how both employers and employees may try to make use of the Sprint decision in future employment discrimination litigation.

"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries

By Richard L. Hasen[*]

[download pdf]

Introduction

After the 2008 presidential election season concludes, no doubt there will be calls to change the presidential nomination system, especially on the Democratic Party side.  Already before the current season began, Congress explored legislation to prevent the “frontloading” of the primary process through the creation of a series of rotating regional primaries.[1]  The close contest for the Democratic Party nomination this winter and spring revealed additional issues beyond the timing question.  Critics have argued that the caucus system used in some states is unfair and poorly administered,[2]  that the unequal weighting of votes for purposes of delegate selection violates democratic principles,[3]  and that the fate of the Democratic Party presidential nomination should not turn on the votes of unelected “superdelegates.”[4]

It is certainly possible that the parties themselves will change their nomination rules in response to these criticisms, as the parties have done in the past.  But in the event the parties cannot agree on changes, Congress may consider legislation imposing changes to make the nomination rules comply more with the typical “one person, one vote” norms applicable to general elections.  At the extreme, Congress might require presidential nominations to occur through state-by-state direct primaries conducted under one person, one vote principles.  Here, I explore the question whether Congress has the power to impose such primaries on the parties and the states if the parties, states, or both object. I do not consider the wisdom of such legislation.

As I explain, the main argument that parties can advance against Congressional (or for that matter, state) imposition of a direct presidential primary is that it violates the First Amendment associational rights of political parties to determine their method for choosing their standard bearers.[5]  This argument would appear to have much force given recent Supreme Court cases recognizing the parties’ rights to overrule the states on the open or closed nature of political primaries.  On the other hand, the Court has also accepted as “too plain for argument” a governmental power to require parties to use direct primaries to choose their nominees to assure fairness of the process.[6] So resolution of the question is uncertain.