“A number of important procedural decisions by the U.S. Supreme Court have had a dramatic impact on plaintiffs’ access to the federal courts, their right to a jury trial, and even the substantive law of employment discrimination. The first cases involved the so-called ‘summary judgment trilogy,’ then Iqbal and Twombly dealing with motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), and most recently Wal-Mart Stores, Inc. v. Dukes addressing class certification. In theory, these decisions were ‘only procedural,’ either addressing preliminary matters at a relatively early stage of the case or, at the very least, before the merits of the case had been litigated. But this characterization — ‘only procedural’ — dramatically understates the significance of these decisions. The impact of these cases stretches beyond the usual one affecting the court’s evaluation of the complaint or its determination of summary judgment or class certification. Typically, these rulings can end a case, or dramatically reshape it. Threshold determinations have always required a court to make substantive predictions about the merits of the plaintiff’s case. Indeed, early rulings on procedural issues, such as dismissal motions and summary judgment, have often comprised an effective revision of substantive law through the back door.”

Source: Hon. Nancy Gertner and Elizabeth M. Schneider. “Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases.  57 N.Y.L. Sch. L. Rev. 767, 768 (2012–2013).

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