Institute Symposium: Closing Panel Sets Stage For Ongoing Dialogue Among Bench, Bar and Academy

By Rebecca Hamburg posted 05-15-2012 06:57 PM


This post wraps up our coverage of The Institute's Symposium ("Trial By Jury Or Trial By Motion?: Summary Judgment, Iqbal And Employment Discrimination") at New York Law School on April 23, 2012. Read the previous panel and keynote recaps: hereherehere, and here.  

The closing panel of the Institute/NYLS Symposium provided participants with an opportunity to reflect on the issues addressed throughout the day. Institute Program Director Rebecca M. Hamburg moderated the final session, which featured Professor Joseph A. Seiner (University of South Carolina School of Law) and Judge Mark W. Bennett.

Rebecca began the panel by providing a brief recap of how the symposium came to be and noted that The Institute and NYLS dedicated the symposium to the memory of former NELA Executive Board Member Robert Belton, and Professor Emeritus of Vanderbilt Law School, who passed away in February. “The Professor,” as we affectionately called him, was a founding member of The Institute’s National Litigation Strategy Project (NLSP), and the symposium was his brainchild. He was instrumental in our ability to make this vision a reality. She then turned the microphone over to Professor Seiner and Judge Bennett for their thoughts on what was most surprising, overlooked or interesting to them about the day’s discussions.

Professor Seiner asserted that the real battleground after the U.S. Supreme Court’s decisions in Twombly and Iqbal is preserving Swierkiewicz v. Sorema, which provided a more favorable pleading standard for employment plaintiffs and which has not been overruled explicitly by the Court. Professor Seiner pointed out that one of the often overlooked issues with Twombly and Iqbal is that those two cases are factually complex, much more so than the average employment discrimination case, and thus there is room for employee-plaintiffs to distinguish their own cases from the scenarios presented by the Supreme Court cases. Echoing Elizabeth Grossman’s earlier remarks, he concluded that because Swierkiewicz addressed pleadings standards in a way that is directly applicable to discrimination claims, and because neither Twombly nor Iqbal cited to Swierkiewicz, attorneys need to fight to ensure that Swierkiewicz avoids being subtly or impliedly overruled.

Judge Bennett wrapped up the Symposium by stating that while summary judgment is not going away today, tomorrow or in his lifetime, he is certain that it is going away, because it is raising costs for litigants to such an extent that our entire civil justice system is becoming unsustainable. One task on which we all can focus is to make every effort to reduce the costs of litigation, and to take all the requirements of Rule 1 (“to secure a just, speedy, and inexpensive determination of every action…”) to heart. Judge Bennett also directed one final thought to his colleagues on the federal bench, in the form of quote from a recent article written by Senior District Court Judge Brock Hornby (District of Maine), imploring his colleagues to “be slow to take inference questions away from juries, even when colleagues are affirmed in doing so.”

With that, The Institute’s first academic symposium came to a close. In sum, the panelists provided an intriguing mix of theoretical analysis and practical advice that was useful for judges, academics, and practitioners alike. Papers submitted by the panelists are expected to be published in an issue of the New York Law School Law Review in early 2013. Video recordings of the presentations, including Judge Chin’s keynote address, as well as written materials from the Symposium can be found online at

There are plenty ideas to build on as we move forward with our National Litigation Strategy Project at The Institute. If you are interested in learning more about the Project, please visit The Institute’s website at If you are facing one or more of the problem doctrines in your cases, the Summary Judgment Toolkit Series may provide some valuable insights for you. For the first paper (Securing The Right To A Jury Trial: Attacking "Stray Remarks" At Summary Judgment), please click here, and for the second paper (Preserving The Right To A Jury Trial By Preventing Adverse Credibility Inferences At Summary Judgment), please click here.

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