The Fallacy of Dispositive Procedure

Abstract:     
The U.S. Supreme Court has held that judges can dismiss cases before, during, or after trial if they decide that no reasonable jury could find for the plaintiff. The Court has also held that judges cannot dismiss cases based on their own views 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 factfinder, among others—although the terms are all different in meaning—and indeed, disagree among themselves on what the evidence shows. I further argue that the reasonable jury standard is a legal fiction that involves a false factual premise: that courts can actually apply the reasonable jury standard. Evidence that courts cannot apply the standard includes the current substitution of a judge’s views for a reasonable jury’s views and the speculative, indeed impossible, determination that a judge would be required to perform to determine whether any reasonable jury could find for the plaintiff. As a result, I conclude that the basis upon which judges dismiss cases under the major dispositive motions is fatally flawed.

Keywords: summary judgment, directed verdict, judgment as a matter of law, jury, reasonable jury, reasonable juror, reasonableness, reasonable man, sufficiency of the evidence, legal fiction

JEL Classifications: K40, K41, J71, J78, K49, K00, K10, K19, K30

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