Comments on: Case Update

By: Greg Helms

Greg Helms — Tue, 26 Aug 2008 11:54:42 +0000

On the face, I’d say you’re right, with the caveat that we aren’t privy to the inner workings, so we don’t know if the Court as a whole is to blame for the delay or if an individual justice was the cause.

By: Lionel Hutz

Lionel Hutz — Mon, 25 Aug 2008 22:25:12 +0000

I also agree. Though it doesn’t excuse the fact that it took the Court this long to IA the case.

By: Greg Helms

Greg Helms — Mon, 25 Aug 2008 16:33:32 +0000

I agree.

By: Russ Bensing

Russ Bensing — Mon, 25 Aug 2008 16:14:40 +0000

I think this resulted from one of the problems with the “arguendo” assumption: rather than addressing whether the evidence actually showed a safety violation, both of the lower courts didn’t address that issue, instead going straight for the question of whether the danger was open and obvious. Neither of the jurisdictional memoranda really argued the issue strongly; it wasn’t until the appellee’s merit brief that the company really made a big deal about it.

Actually, I think this case says more about some of the problems with the open and obvious doctrine, and the courts’ increasing willingness to use summary judgment to decide factual issues, than it does about the Supreme Court’s IA policies.

By: Greg Helms

Greg Helms — Mon, 25 Aug 2008 13:32:20 +0000

Yes, there was credence given to the experts, but the plaintiff also had to show there were genuine issues of material fact. The plaintiff just can’t say, “The defense expert is wrong,” or, “Because we say there’s a breach, there’s a breach.” Thus, if the only evidence is the defense expert, how should that evidence be construed?

By: Lionel Hutz

Lionel Hutz — Mon, 25 Aug 2008 12:07:51 +0000

I wonder if there’s any sense of shame in waiting this long to IA this case. (My guess is a resounding “No”.) IA’ing a case reflects not only on the Court’s work ethic, but on its competence as an institution. Why wasn’t this issue vetted during the jurisdictional phase? If you read both the trial and appellate decisions in AK Steel, for example, both courts assumed a violation of the administrative regulation. It should’ve been noted, right at the outset, that the case had been decided without any determination regarding an actual breach of the regulation.

Moreover, I’m not sure why the Court can’t simply assume a violation and reach the legal question. The factual matter was certainly contested, even at the Supreme Court level; but if legal grounds would preclude relief regardless of an actual breach, why not decide it now? Must parties go through the rigmarole of discovery when, in fact, the plaintiff might be legally unable to recover? Notice how Justice O’Connor’s opinion gives an awful lot of credence to AK Steel’s experts, which she argues shows that no breach occurred. Doesn’t that strike you as inappropriate?