Pretrial Motion Practice and Employment Discrimination

New York Law School Law Review has a new symposium issue, Volume 57, Issue 4, Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination. The issue is based on a symposium held at New York Law School in April 2012 which examined evidence that civil rights cases, especially those alleging employment discrimination, are susceptible to dismissal before trial as well as to unfavorable judgment notwithstanding the verdict after trial.

Among the many contributors who include practitioners, judges, and academics is Brooklyn Law School Professor Elizabeth M. Schneider who with Harvard Law Professor Nancy Gertner co-wrote the article “Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases, 57 N.Y.L. Sch. L. Rev. 767 (2012-2013), which focuses on the “substantive law dimensions” of the procedural decisions that federal courts make in employment discrimination cases. Professors Scheider and Gertner take the Supreme Court decision Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011), which limited the availability of class actions as the starting point for their argument.

The other articles published in the issue give an in-depth look at pretrial motion practice in employment discrimination cases both from the point of view of practitioners and academics, offering practical suggestions for attorneys for plaintiffs and guidance for judges in ruling on pretrial motions.