The Fallacy of Dispositive Procedure

26 Pages Posted: 7 Jan 2009 Last revised: 13 May 2009

See all articles by Suja A. Thomas

Suja A. Thomas

University of Illinois College of Law

Date Written: January 5, 2009


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 Classification: K40, K41, J71, J78, K49, K00, K10, K19, K30

Suggested Citation

Thomas, Suja A., The Fallacy of Dispositive Procedure (January 5, 2009). Boston College Law Review, Vol. 50, 2009, Illinois Public Law Research Paper No. 08-09, Available at SSRN:

Suja A. Thomas (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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