Accidents, evocative objects and art: meanderings of the mind in the work of Christopher Bollas and Gabriel Orozco

This study offers an introduction to Christopher Bollas’s theoretical approach to thinking and the creative process, both within and outside of the psychoanalytic encounter. It also looks at selected works by the artist and sculptor Gabriel Orozco which help to illuminate Bollas’s thinking and underscore concepts related to self which are of interest not just to psychoanalysis and art, but to a much wider audienc

Back to Class: Lessons from the Roberts Court Class Action Jurisprudence

This symposium issue on The Class Action After a Decade of Roberts Court Decisions provides perspectives on how the class action has fared under persistent Supreme Court scrutiny. Over the past ten years, the Roberts Court has repeatedly returned to questions concerning class action litigation...This ten-year retrospective on the Roberts Court’s class action decisions provides a timely opportunity to reflect on the Supreme Court’s institutional role in construing the Federal Rules and in creating class action policy through decisions construing Rule 23...The contributors to this symposium focus on the Roberts Court class action decisions as a whole; the Roberts Court’s new insights regarding the nature of the class action; and the practical impact of the Court’s class action decisions. Section II of this Foreword discusses articles that offer perspectives regarding the body of class action cases decided by the Roberts Court... Section III reviews articles that discuss (1) the Roberts Court’s perception of the class action and (2) the interplay of federalism principles and the Court’s restrictive approach to class certification under Rule 23...Finally, Section IV reviews articles that assess the vigor of class action litigation in the lower federal courts after the Roberts Court’s decisions in Wal-Mart v. Dukes, Comcast Corp. v. Behrend, and the Court’s securities class action cases

Symposium: The Future of Summary Judgment Foreword - Summary Judgment and the Influence of Federal Rulemaking

In this review of the evolving role of summary judgment, Professor Steven Gensler provides insight into whether Rule 56(c) give judges discretion to deny summary judgment even if the preconditions of Rule 56(c) have been met, i.e., if there is no genuine issue of material fact and judgment as a matter of law could be entered, and Professor Edward Brunet engages directly the important debate regarding intemperate use of summary judgment to deny potentially meritorious claims, contending that currently available ―safeguards‖ can prevent inappropriate grant of summary judgment. Professor Stephen Burbank and Professor Linda Mullenix enlarge the discussion to consider as well the impact of summary judgment on other aspects of the interconnected federal procedural system. Professor Burbank explores the increasing doctrinal linking of the Rule 12(b)(6) motion to dismiss and summary judgment and the impact of the Supreme Court‘s decisions in Twombly and Iqbal on the future of rulemaking. Professor Mullenix evaluates the desirability of increasing the tasks assigned to the sturdy summary judgment workhorse, at least in the area of complex litigation, by including in the Federal Rules explicit authorization for courts to consider summary judgment on the named plaintiffs‘ claims before class certification. Finally, Professor Jeffrey Cooper reviews diverging Supreme Court opinions to provide insight on whether, under the Erie doctrine, Federal Rule 56 will continue to control in diversity cases

Appealable TROs

It’s textbook law that temporary restraining orders (TROs) are not appealable. That bright-line rule, however, has never told the whole story. Today, a majority of circuit courts permit appeal of TROs in narrow instances when, for instance, the TRO has the practical effect of an injunction, threatens serious or irreparable injury, and can only be reviewed effectively by immediate appeal. This accords with the Supreme Court’s conclusion in Carson v. American Brands, Inc., which permitted limited appeal of orders that, like TROs, are not express injunctions but may threaten the same irreparable injury as an injunction. The Carson Court emphasized that such instances should be narrow, given Congress’s overriding goal of limiting piecemeal appeal.Since the early 2000s, however, three circuits have developed more expansive appeal standards for appeal of TROs under 28 U.S.C. § 1292(a)(1). Other circuits typically use a narrow approach to appeal of TROs, but they, too, sometimes use the newer, more expansive approaches for appeal of TROs. This contradicts Congress’s desire for strict limits on piecemeal appeal under § 1292(a)(1), while also importing the negatives of discretionary review: The expansive approaches give appellate courts unwarranted power to pick which TRO decisions are appealable, allowing courts to base appeal on personal preference, personal experience, or desire to decide high-profile, political, or other “important” issues. Today, appellate courts primarily wield this power to permit governmental appeals or appeals in other “important” or “extraordinary” cases, but review authority under some of the expansive tests is essentially unbounded.Pragmatic and structural reasons also argue against early appeal of TROs. When a TRO decision is appealed, the lower court record is uniquely unsuitable for appellate review, given the typically sparse factual exposition in the pre-TRO hearing, the limited opportunity for legal presentation, the limited time before the district court ruling, and the fact that the district court typically intends to move quickly to the fuller preliminary injunction hearing following expedited discovery. The limited nature of the factual and legal presentation in the pre-TRO hearing and limited district court order hobbles the appellate court in both its error-correction and law-giving functions. And it does so primarily in the context of the very issues that deserve measured appellate consideration – high-profile, political, and important or extraordinary issues. At the same time, the very fact of immediate appellate review changes the parties’ settlement calculus and gives the district court’s TRO decision the outcome determinative or functionally dispositive quality of a preliminary injunction. Thus, quick review of TRO decisions is typically unlikely to improve upon the district court’s TRO decision and unlikely to produce guidance for future cases, but quite likely to impel settlement on a very incomplete record.This Article spends considerable time on the following issues, which have been given only limited play in the legal literature: (1) the differences between preliminary injunctions, ex parte TROs, and “notice-provided” TROs; (2) the narrow traditional grounds for appealing TRO decisions; (3) the history of Supreme Court case law that narrowly confines appeal of orders, like TROs, that are not injunctions, but have the “practical effect” of an injunction; and (4) the narrow and expansive approaches to appeal of TROs developed in the federal circuit courts. While largely descriptive, this material fills significant gaps in existing appeal literature. The Article concludes that appeal of TRO decisions ought to be available only when the three “Carson requirements” are met – the TRO has the practical effect of an injunction; threatens serious or irreparable injury; and effective review is available only through immediate appeal. Finally, the Article provides guidelines for determining when each Carson requirement is met

Summary Judgment and the Influence of Federal Rulemaking (Foreword to Symposium: The Future of Summary Judgment)

This essay provides an overview of symposium articles on The Future of Summary Judgment, which were submitted in connection with the Section on Litigation’s program on summary judgment at the 2010 Annual Meeting of the Association of American Law Schools. Contributions to the symposium by Professors Edward Brunet, Stephen Burbank, Jeffrey Cooper, Steven Gensler, and Linda Mullenix, explore issues regarding (1) amendments to Federal Rule 56 that are set to take effect on December 1, 2010; (2) emerging safeguards to prevent improvident grant of summary judgment; (3) the potential of summary judgment to impact interrelated aspects of the pretrial process, including the 12(b)(6) motion to dismiss and class action litigation; and (4) the future of the federal standard for summary judgment in diversity cases. Although the articles explore a wide range of issues relating to summary judgment, a dominant subtext is the interplay between summary judgment and federal rulemaking, including the impact of federal rulemaking on summary judgment, the effect of the transsubstantive assumption of the Rules Enabling Act, and the limits of the substantive rights prohibition of the Rules Enabling Act. This essay discusses also (1) how failure to amend Rule 56, absent consensus, leads to substantial variation in summary judgment practice in the federal courts because federal rulemakers respond to lack of consensus by abandoning proposed Rule change or by providing broad discretion to trial judges regarding normative decisions; and (2) how the justices’ views on the importance of uniform application of Federal Rules in diversity cases led to the splintered decisions in the Supreme Court’s recent Erie decision, Shady Grove Associates, P.A. v. Allstate Insurance Co

Reassessing the Avoidance Canon in Erie Cases

This Article advocates that the Supreme Court recalibrate the avoidance canon used in Erie cases in which Federal Rules are in potential conflict with state law. The Article examines the Court’s historical use of avoidance in Erie cases, observing that contemporary jurists inappropriately conflate the purposes of pre- and post-Hanna avoidance when they conclude that avoidance in both periods protected state interests. Avoidance in the post-Hanna period has been premised on protecting important state interests and regulatory policies, but pre-Hanna avoidance attempted, with mixed success, to protect the Federal Rules. The Article also reveals that the Court’s post-Hanna federalism focus for avoidance, which has permitted state law to override Federal Rules and has permitted differing interpretations of a single Federal Rule in diversity and federal question cases, also permits replication, on a Rule-by-Rule basis, of the results realized under Guaranty Trust’s outcome determinative principle. The Article moves from an historical perspective on the Court’s use of avoidance in Erie cases to examination of the three competing views on avoidance espoused in the majority, concurring, and dissenting opinions in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 130 S. Ct. 1431 (2010). Justice Scalia, in dicta, proposes a type of “classical” or “narrow” avoidance; Justice Stevens, in concurrence, suggests a broader avoidance canon modeled on “serious doubts” principles, which would counsel avoidance if the most natural construction of a Rule would raise serious doubts about the Rule’s validity under the REA; and Justice Ginsburg, in dissent, advocates avoidance based almost solely on respect for important state interests and regulatory policies. The Article concludes that an avoidance principle is warranted in REA cases, and it should be based on analogy to construing statutes narrowly to avoid serious constitutional doubts, in a manner similar to the avoidance principles proffered by Justice Stevens in Shady Grove. Such an avoidance rule of interpretation, however, should be guided by whether a Rule would encroach on Congress’s substantive lawmaking powers, rather than on whether a Rule might interfere with an unbounded concept of important state interests or regulatory policies. Further, in determining whether there is a permissible saving construction of a Rule that would permit avoidance of a conflict between the Rule and state law, the Court should, in line with its use of avoidance in other Enabling Act contexts, construe the Rule in accord with its text and its history and purposes, as set forth in the Advisory Committee Notes

Back to Class: Lessons from the Roberts Court Class Action Jurisprudence

This symposium issue on The Class Action After a Decade of Roberts Court Decisions provides perspectives on how the class action has fared under persistent Supreme Court scrutiny. Over the past ten years, the Roberts Court has repeatedly returned to questions concerning class action litigation...This ten-year retrospective on the Roberts Court’s class action decisions provides a timely opportunity to reflect on the Supreme Court’s institutional role in construing the Federal Rules and in creating class action policy through decisions construing Rule 23...The contributors to this symposium focus on the Roberts Court class action decisions as a whole; the Roberts Court’s new insights regarding the nature of the class action; and the practical impact of the Court’s class action decisions. Section II of this Foreword discusses articles that offer perspectives regarding the body of class action cases decided by the Roberts Court... Section III reviews articles that discuss (1) the Roberts Court’s perception of the class action and (2) the interplay of federalism principles and the Court’s restrictive approach to class certification under Rule 23...Finally, Section IV reviews articles that assess the vigor of class action litigation in the lower federal courts after the Roberts Court’s decisions in Wal-Mart v. Dukes, Comcast Corp. v. Behrend, and the Court’s securities class action cases