Thursday, January 8, 2009

Thomas on The Fallacy of Dispositive Procedure

Sthomas Suja Thomas (Illinois) has just posted on SSRN her article (forthcoming Boston College L. Rev.) The Fallacy of Dispositive Procedure.  Here's the abstract:

[D]ispositive 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.

I agree.  I see this consistently in discrimination cases, where courts often grant summary judgment notwithstanding extant (though sometimes weak) evidence of discrimination; and in i.i.e.d. cases, where the legal standard amounts to whether the conduct is "awful enough" to justify liability.  Courts frequently say "no evidence" when what they really mean is "not enough evidence for me."  That's a problem given that most federal judges are older, white, male, life-tenured, relatively well-paid, and politically conservative.


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