An Ounce of Prevention: Solving Some Unforeseen Problems with the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process

Adam N. Steinman[*]

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In 1986, the Supreme Court decided three cases—Anderson v. Liberty Lobby, Celotex v. Catrett, and Matsushita Electric v. Zenith Radio[1] —that transformed summary judgment from “a disfavored procedural shortcut”[2] to a central feature of federal civil litigation.[3]   Summary judgment today is so important that federal courts have cited the three decisions in the 1986 trilogy more frequently than any judicial decisions in the history of American jurisprudence.[4]   For the first time since the trilogy (and indeed since the Federal Rules of Civil Procedure came into effect seventy years ago), the Civil Rules Advisory Committee has proposed a major revision to Rule 56’s summary judgment process.[5]

The aim of the Committee’s proposal is laudable: “to improve the procedures for making and opposing summary judgment motions, and to facilitate the judge’s work in resolving them.”[6]   It accomplishes this goal by adopting a “point-counterpoint” process, similar to procedures that have been used in several federal districts via local rule.[7]   Under this process, the summary judgment movant must file a “statement”—separate from the motion and brief—that “concisely identifies in separately numbered paragraphs only those material facts that cannot be genuinely disputed and entitle the movant to summary judgment.”[8]   The nonmovant must then file a “response”—separate from its brief opposing summary judgment—that accepts or disputes each of the facts in the movant’s statement, and may also state “additional material facts that preclude summary judgment.”[9]   The movant must file a “reply”—separate from its reply brief—that accepts or disputes any additional facts stated by the nonmovant.[10]   In proposing this procedure, the Committee has wisely stated that “no change should be attempted in the summary judgment standard or in the assignment of burdens between movant and nonmovant,” preferring “to leave these matters to continuing evolution under the 1986 Supreme Court decisions that have guided practice for the last twenty years and more.”[11]

This Essay identifies several problems with the proposed text that could have unfortunate consequences and contravene the Committee’s intent.  In particular, the proposed text can be read to make significant changes to the summary judgment standard and the burdens on litigants at the summary judgment phase.  At the very least, it may inadvertently dictate questionable approaches to aspects of summary judgment procedure that have yet to be directly addressed by the Supreme Court.  Although the Committee’s stated intent to retain the existing standard and burdens might spur courts to interpret the new text to avoid these ramifications, the safer course is to revise the Committee’s proposal before it is officially transmitted in spring 2009.  Because the proposed amendments affect so critical an aspect of civil litigation as summary judgment, an ounce of prevention is especially well-advised.

Part I of this Essay examines proposed Rule 56(c)(4), which addresses how parties must support the factual positions they express in their statement, response, and reply.  Part II examines proposed Rule 56(c)(5), which authorizes parties to challenge the admissibility of their opponent’s summary judgment material.  Part III points out a minor ambiguity in the proposed rule concerning the standard for evaluating additional material facts asserted in the nonmovant’s response.  Detailed suggestions for revising the proposed amendments appear in the Appendix to this Essay.

Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008

Alex B. Long[*]

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Introduction

On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 (ADAAA).[1]   When the first President Bush signed the original Americans with Disabilities Act (ADA) into law in 1990, he said it was time “to rejoice in and celebrate another ‘Independence Day,’ one that is long overdue.”[2]   For the 43 million Americans with disabilities, the ADA was supposed to represent the opening of doors that had long been closed.  Employers, state and local governments, and private businesses—from bowling alleys to restaurants—would now be required to make reasonable modifications to their facilities, policies, and procedures in order to allow full participation by individuals with disabilities.  In short, expectations for the ADA were high.

This probably explains why the ADA is viewed so widely by disability rights advocates and its original authors as such a huge disappointment, especially in the employment context.[3]   Studies consistently reveal that, despite the ADA, employees who claim to be the victims of disability discrimination in the workplace face long odds.[4]   Plaintiffs outside the workplace have enjoyed more success in requiring government actors and private businesses to make changes to their existing structures and policies, but the reality is that many individuals with disabilities are still excluded from participating in activities most of us take for granted.

The biggest limitation of the ADA has been its definition of “disability.”  In order to be protected by the Act, one must first show the existence of a disability.[5]   To put it mildly, this has not been an easy task.  As originally drafted, the definition was vague and courts tended to interpret the definition narrowly.  People with a variety of serious physical or mental impairments, ranging from AIDS, to cancer, to bipolar disorder, have been found not to have disabilities under the ADA.[6]   In one case, an individual with cancer brought suit against his employer and died before the resolution of the case, only to be told (posthumously) that his cancer was not limiting enough to amount to a disability under the Act.[7]

The ADA Amendments Act of 2008 sets out to address some of the more controversial and problematic aspects of the definition of disability.  The Act starts with essentially the same basic three-pronged definition of disability that existed under the original ADA.  According to the ADAAA:

The term “disability” means, with respect to an individual— (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment . . . .[8]

On closer examination it becomes clear that the Act includes some fairly dramatic changes to the definition.  The following piece summarizes the provisions of the new law and offers some tentative predictions as to the effect of these changes on future cases.  Part I discusses the changes to the ADA’s definition of disability.  Part II describes some of the other important changes to the Act.  Finally, Part III identifies some of the issues left unresolved by these changes.

Instead of ENDA, A Course Correction for Title VII

Jennifer S. Hendricks[*]

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The LGBT[1] community may soon win a legal victory that has been decades in the making: passage of the Employment Non-Discrimination Act (ENDA).  As passage of the bill becomes more likely, debates about how much to compromise for that victory have become increasingly important.  The current version of ENDA represents a series of compromises that should now be reconsidered.

After years of failed attempts to add “sexual orientation” to Title VII of the Civil Rights Act of 1964,[2] ENDA’s proponents decided they would have a better chance with a stand-alone bill stripped of several of Title VII’s protections: they gave up disparate impact claims and affirmative action as a remedy for proven discrimination.  Most recently, Representative Barney Frank, the Act’s sponsor, agreed to remove protection for transgendered people in order to win passage in the House.[3]

Less than a year later, a federal court showed Representative Frank the risks of compromise.  In September 2008, the D.C. district court held in Schroer v. Billington that transgender people are already protected by Title VII’s ban on sex discrimination.[4]   This decision would have been less likely if ENDA had passed last year because the enacted version would have excluded gender identity claims.  Moreover, the current version of ENDA has the potential to do real harm not only to transgendered plaintiffs but also to lesbian, gay, and even straight-identified plaintiffs whose claims are based on sex stereotyping.

This Essay proposes a revision of ENDA that would avoid those harms and at least leave the door open to gender identity claims.  Instead of enacting ENDA as currently drafted, the next Congress should amend the “because of sex” provision of Title VII to prohibit discrimination “because of gender,” defined to include sexual orientation and gender identity.  “Sex” refers to an anatomical classification as male or female, while “gender” refers to socially constructed norms associated with sex.  As explained in Part I, the courts have already interpreted Title VII to allow some kinds of claims based on gender rather than sex but have refused to recognize sexual orientation as part of gender.  Part II notes Congress’s response when the courts wrongly adopted a narrow interpretation of “sex” that excluded pregnancy: Congress responded effectively through Title VII instead of enacting a separate law about pregnancy.  Part III argues that Congress should do the same for sexual orientation and gender identity.

Military Commissions and National Security Courts After Guantánamo

Amos N. Guiora[*]

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In his essay, Professor McNeal outlines several important factors for reformers to consider when proposing alternatives to the current judicial system for trying individuals suspected of involvement in terrorism.[1]   Among these important considerations are the recognition of the constitutional rights of detainees, the importance of ensuring national security through preserving confidential intelligence information, and the problem presented by the current detainees in Guantánamo Bay.  This response, based on my testimony before the Senate Judiciary Committee,[2] will address these important issues while detailing some of the important factors in my proposal calling for the establishment of a U.S. domestic terror court.

As a starting point, it is critical to state the obvious.  In discussing where to try individuals suspected of involvement in terrorism, it is important to understand both that the status of all detained individuals must be fully defined and that all individuals have rights.  Otherwise, definitional uncertainty will continue to rule the day.  That definitional uncertainty has contributed to unending violations of civil and political rights for thousands of individuals held world-wide, either directly by or on behalf of the United States in the aftermath of 9/11.[3]

The question of where to try post 9/11 detainees is but one leg of a complicated triangle; what are the criteria for initial detention in what I refer to as the “zone of combat,”[4] and how are suspected individuals to be interrogated[5] are the other two.  While all three legs deserve careful and consistent scrutiny by policy makers, the media, academics, and the general public in this response to Prof McNeal’s thoughtful essay, I will limit my comments to proposing that post 9/11 detainees be tried in the American judicial paradigm.

Part I of this Essay will address the importance of defining both “detainee” and the current conflict so that defendants’ rights can be firmly established before going forward with a viable judicial process.  Part II will address the importance of classified intelligence information in trying suspected terrorists and proposes a mechanism for addressing legitimate security concerns while ensuring the defendant’s right to a fair trial.  That section will also discuss various alternatives to the current system, including my proposed domestic terror court with specially trained judges as the most viable option going forward.  Part III will specifically address the issue, raised by Professor McNeal, presented by the group of seventy-five current detainees and explains how my proposed domestic terror court creates a formal vetting procedure to determine whether an individual detainee presents a continuing national security threat.

Administrative Announcement: Happy Birthday Colloquy!

The Northwestern University Law Review Colloquy turns two years old today.  Or does it?  In Re Harris, 855 P.2d 391 (Cal. 1993), provides an interesting analysis of old the common law rule that one attains their age on the day prior to the anniversary of their birthdate because the day of birth is included in the computation of age.  Some states have abrogated this common law rule and replaced it by statute with the "birthday rule."  Id.  To see if today is truly the Colloquy's birthday, check out People v. Anderson, 439 N.E.2d 65 (Ill. 1st Dist. 1982) (Illinois law does not count fractions of the day for computations of age).  See also Eugene Volokh, Birthday Law, The Volokh Conspiracy (Mar. 29 2007), http://volokh.com/posts/1175177612.shtml.