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Tennessee Journal of Law and Policy


In 2011, the Tennessee General Assembly – the first majority Republican legislature in the state since Reconstruction – passed two bills purporting to legislatively overrule recent decisions of the Tennessee Supreme Court that the legislature deemed unfriendly to business interests. This article examines the legislative history of one of those bills. Public Chapter No. 498, codified as Tennessee Code Annotated section 20-16-101, attempts to change the summary judgment standard adopted by the Tennessee Supreme Court in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008). In Hannan, the Supreme Court explicitly rejected the federal Celotex standard for burden-shifting on summary judgment, holding that a movant can shift the burden of production only by either negating an essential element of the nonmovant’s case or by demonstrating that the nonmovant cannot prove an essential element of its claim at trial. Hannan had simply reaffirmed a decade-old line of cases, but was characterized by the dissenting justice and, subsequently, by the defense bar, as a radical change in Tennessee law. Thus, it became a prime target of the business-oriented General Assembly.

The article’s analysis of the legislative history – which is available only via web-based video, but is transcribed as an Appendix to the published article – illustrates a number of weaknesses in the legislative process. First, the bill was based upon the erroneous assertion that pre-Hannan Tennessee law was identical to the federal Celotex standard. Second, the factual allegations made by the sponsors of the bill – that the Hannan standard had resulted in fewer summary judgments being granted than in either federal court or Tennessee courts prior to Hannan – were wholly unsupported by empirical or even anecdotal evidence. Third, the legislature failed to submit the proposed legislation to the Advisory Commission on the Rules of Practice and Procedure to seek expert counsel about the niceties of civil procedure, and then implied that both the Rules Commission and a leading trial lawyers’ group had approved of the bill. And finally, the sponsors of the bill gave short shrift to other legislators’ concerns about its implications for the separation of powers. Ultimately, the article concludes that the legislative history of Public Chapter No. 498 provides a weak foundation for legislation of this significance and complexity.

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