Monday, January 12, 2009

Is dispositive procedure "fatally flawed"?

Professor Suja Thomas from the University of Illinois has posted a new article to SSRN arguing the answer to that question is emphatically yes.  The new article, "The Fallacy of Dispositive Procedure" is forthcoming in Volume 50 of the Boston College Law Review.  Professor Thomas published an article two years ago arguing "Why Summary Judgment is Unconstitutional."  This abstract follows for her new article:

I have another seemingly heretical proposition - that dispositive procedure is fatally flawed. The Supreme Court has held that a judge can dismiss a case before, during, or after trial if he decides a reasonable jury could not find for the plaintiff. The Court has also held that a judge cannot dismiss a case based on his own view of the sufficiency of the evidence. I contend, however, that judges do exactly that. Judges dismiss cases based simply on their own views of the evidence, not based on how a reasonable jury could view the evidence. This phenomenon can be seen in the decisions dismissing cases. Judges describe how they perceive the evidence, interchangeably use the terminology of reasonable jury, reasonable juror, rational juror, and rational fact-finder among others although very different in meaning, and indeed, disagree among themselves on what the evidence shows. I further argue that the reasonable jury standard involves several layers of legal fiction. Those fictions include the current substitution of a judge's views for a reasonable jury's views, the speculative determination by a judge of whether a reasonable jury could find for the plaintiff, the assumption that disagreement among judges on the sufficiency of the evidence does not show a reasonable jury could find for the plaintiff, and the assumption that disagreement among judges on the sufficiency of the evidence demonstrates unreasonableness on the part of some of the judges. These legal fictions, which underlie the reasonable jury standard, show that the basis of dispositive procedure is fatally flawed.

-Counseller/ps

http://lawprofessors.typepad.com/civpro/2009/01/is-dispositive.html

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