The Swinging of a Pendulum? MSJ's and Employment Law

Anyone who has been around the legal world for a long time knows that how the law is interpreted tends to swing back and one forth from one side to another just like a pendulum (some might say one extreme to another). It may be just a blip on the screen, but several comments lately have made me more aware of a growing feeling that we may be in the midst of one of those swings in the legal world I inhabit — employment law.

Just a couple of examples — First, Professor Paul Secunda's comment this morning at the Workplace Prof Blog:

If my home state of Mississippi is even considering passing a minimum wage increase, you know that you have a bona fide minimum wage wave sweeping the country.

Minimum Wage Craze Sweeping the Nation.

And a second, from Tom Peters, hardly an anti-business figure, commenting on Peter Hebert's NYT article, Working Harder for the Man ($) on the disparity between payments to CEO's and non-supervisory employees: "I believe in markets—and I also believe that we are on the verge of backlash of a magnitude seldom seen."

If it is a true swing, one of the canaries in the coal mine could be the current main battleground of most employment law cases — summary judgment. Which made more pertinent today's post in the ACS Blog that begins:

Circuit Judges in the Fourth and Eighth Circuits have recently criticized their colleagues for being too quick to grant summary judgment--a quick method of resolving a case which should only be granted when no issues of material fact are reasonably in dispute.

And the two cases in which that opinion was voiced (both dissents by the way), Luh v. J.M. Herber Corp. (4th Cir. 12/21/06) [pdf] and Melvin v. Car-Freshener, Inc. (8th Cir. 7/12/06)[pdf] are — you guessed it, employment law cases.

If that pendulum is in fact swinging, to borrow advice recently given Rudy Giuliani's campaign after it lost a briefing book — employment law litigators who have never tried a jury trial (and their clients) better buckle their chinstraps.