Recently I've gotten together with some classmates to begin reviewing our notes in preparation for finals in a few weeks. We've so far reviewed half of what we learned in Contracts and about 2/3 of what we've covered so far in Criminal Law.
At the study session yesterday our conversation briefly turned to what we've learned in Civil Procedure. We'd just studied two cases regarding summary judgment: Adickes v. S.H. Kress & Co. and Celotex Corp. v. Catrett. The decisions are seemingly quixotic: under Adickes the U.S. Supreme Court seems willing to be charitable towards the plaintiff in weighing her evidence before ruling on the defendant's motion for summary judgment. In Celotex the Court seems to hold the plaintiff to a stricter evidence standard.
In class our professor asked us to speculate on what could justify the distinction. Language in the subsequent Celotex decision made it clear that the latter merely finessed the rule from Adickes rather than overruled it, so we needed to understand the distinction in order to understand how the summary judgment rule may have been reshaped. One of my classmates, who was also in the study group, thought the distinction had to do with the type of claim being raised in each case. Adickes was a civil rights claim whereas Celotex concerned a tort claim for death due to asbestos exposure. I, on the other hand, suggested that a better comparison could be drawn if one compared the aggregate evidence in each case. In other words, rather than focusing on the moving party's evidence separately from the non-moving party's, look to see how the entire pile of evidence matched up against the pile from the other case. Arguably, in Adickes there was a larger aggregate pile, even though it wasn't entirely generated by the non-moving party.
What disturbed me about my classmate's theory was that it was impossible to look at the decisions and derive any sort of guidance about what kind of standard future cases should be held to. First of all, there was no language in either decision to suggest that the type of claim directly influenced the interpretation of Rule 56 of the Federal Rules of Civil Procedure (which controls the applicability summary judgment motions). Nor is there any language in the Rules themselves suggesting that different standards should be applied to different types of cases. In rare instances the Rules do make differentiations with regard to the topic of a case. An example would be Rule 9 which in general requires pleadings to maintain a mimimum notice standard except, as subpart (b) proscribes, in instances alleging fraud or misrepresentation.* These exceptions seem minimal, and with good reason. The Rules set standards to allow for efficient jurisprudence across all types of civil cases. If nuanced exceptions were allowed, judicial efficiency would be compromised. No fan of the school of thought on law and economics could want such a setup because it would add a level of complexity to an already complex and nuanced process. Not only would every trial have to contend with the usual batch of motions but it would also need to endure separate arguments on which category of rules each other motion would be considered under.
In talking later during the study group, my classmate reiterated her belief that the Court allowed for differentiations due to type of case and made it clear that she thought such a move would be a good use of the Court's discretion. For her it seems to boil down to a desire to permit and encourage judicial activism. I understand where she's coming from, to an extent. When I think back to some of the most pivotal socially progressive dictates from the Government in the last century, many of them have come from the U.S. Supreme Court: Brown v. Board of Education, Roe v. Wade, etc. An individual who has welcomed the enhanced definition and protection of civil liberties that cases like these have afforded can come to regard the Court as a social savior. My classmate seems to see the Court that way, but my views have become tempered.
In one way they've become tempered because the Court does not seem to be protecting ideals of civil liberties with anything near the voraciousness that they have in decades past. Sometimes I think the Court does very little to uphold them at all, and even tends to undermine them. One of the problems of bestowing a lot of power on the Court (or courts in general) to set social policy is that you have to be ok with the result if it exercises that power in a way you don't like. The same social institution that decided Brown v. Board of Education also decided Dredd Scott, for instance. A hero-like worship of the U.S. Supreme Court as Supreme Protector of Liberty is bound to bring about grave disappointment.
And my views have also become tempered in listening to the complaints of people whose preferences for public policy are different than mine. Sometimes the differences in preference are substantive, in that the policies they advocate for would, I believe, undermine other people's liberties. In those instances I hope for any governmental institution to use whatever leverage it has to stave off these incursions. But sometimes it's harder to tell which position involves the greater incursion. And sometimes the problem is not in agreeing about what the overall policy should be but on how it should be arrived at. People who hope that the government will do what's right can substantiate that hope only when they can have faith in that process. Such a worthy process would need to be clear, articulated, and equally applied. If we encourage the Court to become an active proponent of certain interests it can exercise discretion in such an arbitrary way that it will be difficult for anyone to have faith in the results, even people who might otherwise welcome them.
In a pinch I don't think it's inappropriate for the Court to exercise discretion. The Court is an important component of the system of checks and balances and I don't think it need humble itself to the legislative and executive branch. When those branches abdicate their responsibility in promoting liberty-protecting social policy the Court can and must step in. But getting back to the example at hand, that scenario is not what we are contending with. Redefining the Rules for Civil Procedure to coddle certain types of claims seems far beyond the realm of any believably necessary use of judicial power. Especially since the legislative branch can choose to handicap or favor certain types of claims when it establishes the remedial rights entitling aggrieved parties to sue. Only if the other two branches are capricious or clearly unjust in such delineations would it be acceptable for the Court to compensate accordingly.
* IBM recently filed a motion to strike three of SCO's defenses as defective.
"Under Rule 12(f), the Court 'may order stricken from any pleading any insufficient defense'. Fed. R. Civ. P. 12(f). Rule 9(b), in turn, requires that, '[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.'"As detailed in IBM's Memorandum in Support of Motion to Strike Affirmative Defenses, SCO's Fifth, Fifteenth and Nineteenth affirmative defenses -- which allege fraud and inequitable conduct -- are improperly pleaded under Rule 9(b) and thus should be stricken. Specifically, SCO fails to allege any facts concerning the fraud that IBM is alleged to have committed. Under any interpretation of Rule 9(b)'s requirements, therefore, SCO's affirmative defenses are defective."