Continuing on the theme of law professors with bold ideas about juries, Prof. Suja Thomas is back.
Prof. Thomas's article "Why Summary Judgment Is Unconstitutional" caught a lot of people's attention last spring. I wrote about it here, starting with "Say what?" She was serious, though. Summary judgment, the familiar workhorse of the civil justice system, is unconstitutional in Prof. Thomas's view because it allows judges to draw inferences from the uncontested facts, a job she believes can be done only by juries under the Seventh Amendment.
In fact, now that the Supreme Court has decided two cases dealing with a different procedural tool -- the motion to dismiss -- Prof. Thomas will take it a step further. Her new paper is "Why the Motion to Dismiss is Now Unconstitutional," at SSRN here, and noted here last month at Lawrence Solum's Legal Theory Blog.
Civil motion practice in a really small nutshell
If you've never filed a motion in a civil case (or just didn't keep up with Twombly and Tellabs last term), stay with me for a second, because this will sound mundane, but it matters.
There are three ways to end a civil lawsuit. You can settle the case; you can have a trial; or you can win the case on a pretrial motion decided by the judge alone. There are two kinds of motions that can end a lawsuit before trial: the motion to dismiss, and the motion for summary judgment. The difference is what the judge can look at when she is deciding the motion. In a motion to dismiss, the judge decides whether the plaintiff's complaint, standing alone, contains allegations that amount to a legal claim. In a motion for summary judgment, the party bringing the motion can submit other facts it believes are uncontested, and the judge has to decide whether those facts are really uncontested and, if they are, whether the law clearly says that one side or the other should win.
For decades, the established rule was that in deciding a motion to dismiss, the trial judge had to accept even the wildest allegations in the complaint as true. In two cases decided earlier this year, the Supreme Court changed that. In Bell Atlantic Corp. v. Twombly, the court said that a judge should dismiss a complaint that fails to allege "enough facts to state a claim to relief that is plausible on its face." The idea that judges can decide what was "plausible" at this early stage of a lawsuit is new, and Twombly sounds like they can decide not only whether the legal claim is plausible, but whether the facts alleged are plausible.
The Court went even beyond "plausible" in the second case, Tellabs, Inc. v. Makor Issues & Rights, Ltd. That was a securities lawsuit, so the precise claim the plaintiffs were making wouldn't exist if Congress hadn't created it. The Court said that since Congress created the claim, Congress could make the rules on when and how a judge should dismiss it. The Court said that the complaint could survive a motion to dismiss only if the judge could make an inference -- that's the key word -- from the complaint's allegations that is "more than merely plausible or reasonable -- it must be cogent and at least as compelling as any opposing inference."
Still with me?
No inferences, period.
Prof. Thomas believes trial judges have no business interpreting the facts in civil cases, whether you call it making inferences, deciding what's plausible, or anything else. (I'm putting her most of text in footnotes to make this easier to read; that's in Note 1.) She acknowledges that it seems reasonable to say that if Congress created the claim, Congress can let judges dismiss it (Note 2) -- but that reasonable assumption is wrong, she says, parsing the Seventh Amendment (Note 3).
In short, she says, when Congress sends a new legal claim out into the world, it's gone. The only people who can reject or interpret the facts in a plaintiff's complaint made under that new claim are jurors (Note 4).
So how would this work? The plaintiff gets a jury, Prof. Thomas argues, if the improbable inferences you can draw from the complaint amount to a claim:
I propose that in reviewing a complaint upon a motion to dismiss, a court should accept as true all of the facts that the plaintiff has pled and should draw all inferences, whether probable or not, in favor of the plaintiff. If those facts and resulting inferences do not give rise to a cause of action, then the court should dismiss the complaint. If those facts and resulting inferences, on the other hand, give rise to a cause of action, then the complaint should not be dismissed.
The view from down here
I have to say, that's a problem. I recognize that in some ways, Prof. Thomas is only arguing for something trial courts have been doing for years, allowing shaky and abusive lawsuits -- or creative and bold lawsuits, depending on your point of view -- to build steam through expensive discovery and even more expensive jury trial before they finally end.
But I've had to defend abusive lawsuits, and to explain to clients why they have to fly me and their witnesses all over the country and pay thousands of dollars in expert and transcript fees to defend a lawsuit that, from the plaintiff's point of view, is an enjoyable hobby and exhilarating risk investment. From where I sit, it makes sense to find ways to end some lawsuits early.
And while I'm not remotely a constitutional scholar, it doesn't seem to me that we've chosen practicality over constitutional purity if we build some exit ramps into civil procedure. Under any interpretation of the Seventh Amendment, you get a jury only if you have a legal claim. I may be unhappy that Apple's not sharing its iPhone profits with me, but I can't ask a jury to give me the money, because I have no claim to it. As I read Prof. Thomas's two papers, though, if I file a complaint saying I found all the plans for the iPhone in a neighborhood dumpster and Apple stole them, Apple is in for the long haul. They can't get the complaint dismissed (it's only improbable that I found the plans), and they can't get out on summary judgment. They either fund a jury trial (probably in Milwaukee in winter), or they pay me off.
That can't be the right result, so we must have to draw a line somewhere. And if the constitution allows a line to be drawn, then we ought to be able to consider practicality when we draw it.
Box-free thinking
I still like Prof. Thomas's paper, though, and Prof. Dooley's national juries proposal too, for the sheer magnitude of their proposals. This isn't thinking outside the box; it's thinking as if there were no box, never was a box, boxes don't exist. As the jury system endures threats from all sides, we need more of that.
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Notes
- "Whether the Supreme Court realizes it or not, it is on the road to the creation of a new theory on the interpretation of the Seventh Amendment – one that eliminates the common law analysis, thus disregarding the constitutional limit on courts’ and Congress’s power over the jury."
- "The Court’s reasoning that Congress and the rule-makers should be able to establish pleading standards, whether heightened or not, which may ultimately extinguish the jury trial right, for causes of action created by Congress appears logical in the first instance. It seems reasonable that if Congress has created a cause of action, Congress and the rule-makers should be able to decide when a court can eliminate that cause of action."
- "The first clause refers to the preservation of the jury trial with no exception that permits that right from being interfered with, including by Congress and the courts. Instead the common law explicitly governs when there is a jury trial. Under the second clause, the common law also governs when facts can be re-examined."
- "Although the jury trial right might result from congressional action that establishes a particular cause of action with a legal remedy, once that right exists under the Seventh Amendment, the right is governed by the Amendment. Once a legal remedy exists, Congress and the courts cannot change the power granted to juries in the Amendment. The Amendment requires that the common law governs the jury trial right."
(Photo by D.F. Shapinsky (pingnews) at http://www.flickr.com/photos/pingnews/142498579/; license details there.)
