Cognitive Illiberalism, Summary Judgment, and Title VII: An Examination of Ricci v. DeStefano

40 Pages Posted: 3 May 2013

See all articles by Ann McGinley

Ann McGinley

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: 2012

Abstract

Scholars have long criticized the federal courts for their inappropriate grants of summary judgment in Title VII cases. Empirical research supports the scholars’ concerns about summary judgment and also tends to demonstrate an “anti-plaintiff effect” in employment discrimination cases in all stages in federal court. Whether the “anti-plaintiff effect” is based on conscious, discriminatory attitudes on the part of judges is unlikely and unknowable. What we do know is that the gap in success between employment discrimination plaintiffs and defendants raises serious questions about procedural and substantive fairness, and the proper role of judges and juries. Moreover, it may threaten the perceived legitimacy of the federal courts.

The new literature on cognitive illiberalism, which has yet to be applied in the employment discrimination context, considers the effect of judges’ grants of summary judgment and their statements that no reasonable jury could find different facts. With the empirical studies in mind, this article explores the U.S. Supreme Court’s grant of summary judgment to the plaintiffs in a high profile “reverse” race discrimination case, Ricci v. DeStefano. It considers whether cultural cognition explains the Supreme Court’s decision to grant summary judgment to the plaintiffs in Ricci v. DeStefano, rather than to remand the case for factual development. It concludes that the Court’s analysis of the facts in Ricci was likely influenced by cultural cognition, and, as a result, the Court’s grant of summary judgment to the plaintiffs in Ricci was improper.

Keywords: summary judgment, Title VII, cognitive illiberalism, Ricci, employment discrimination

JEL Classification: J71

Suggested Citation

McGinley, Ann, Cognitive Illiberalism, Summary Judgment, and Title VII: An Examination of Ricci v. DeStefano (2012). New York Law School Law Review, Vol. 57, No. 4, p. 865, 2012-13, UNLV William S. Boyd School of Law Legal Studies Research Paper Series, Available at SSRN: https://ssrn.com/abstract=2259136

Ann McGinley (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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