Home -> Law Blog Directory -> Academic Blogs -> Legal Theory Blog

Academic

: Legal Theory Blog

Pardo on a Unified Theory of Civil Litigation

By Lawrence Solum

Michael S. Pardo (University of Alabama School of Law) has posted Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:

The Supreme Court?s recent pleadings decisions - Bell Atlantic v. Twombly and Ashcroft v. Iqbal - have injected considerable chaos into the system of civil litigation. The decisions impose an uncertain ?plausibility? requirement and appear to endorse an increased power of district courts to dismiss complaints, a power that may be employed in an unprincipled, normatively problematic manner. The current pleading issues resemble similar issues that have arisen with summary judgment and judgment as a matter. With the latter devices, an unclear ?reasonable jury? standard has likewise failed to guide judicial applications in a principled manner and has lead to criticisms that the unconstrained power it gives judges to terminate lawsuits has lead to normatively problematic consequences. The scholarly debates regarding pleadings - like the debates regarding summary judgment and judgment as a matter of law - have revolved around a tension between the related concerns for access to courts, participation values, jury rights, and the risk of eliminating meritorious lawsuits, on one hand, and the concerns for efficiency, in terrorem settlements, and meritless lawsuits, on the other hand.

This Article argues that there has been a significant failure at both the doctrinal and theoretical levels to relate these three procedural devices to the evidentiary proof process in particular and the system of civil litigation as a whole. I argue that the standards for each device depend on the underlying proof process and understanding the requirements of that process is integral for understanding the devices and providing content to their standards. I introduce a theory of ?procedural accuracy? that explains, clarifies, and provides content to the standards for each device by illustrating how each device serves an alignment function: i.e., they align (or ought to align) outcomes with the requirements of the proof rules. I also explain how the theory fits and explains important aspects of the doctrine for each device. Finally, and most importantly, I defend the theory and the standards it provides as normatively desirable in light of procedural values that underlie the system of civil litigation as a whole.

And from the paper:

The factual allegations that underlie parties? claims may be accurate because they accord with what actually happened in the circumstances described,115 or they may be accurate because the parties have proven them in court by satisfying the applicable evidentiary proof rules. I will refer to the first sense of accuracy as ?material accuracy? and the second sense as ?procedural accuracy.?116 A simple example will illustrate the difference. Suppose (1) a negligence case involving a car accident that turns solely on whether the plaintiff or the defendant ran a red light, and (2) the defendant did in fact run the red light. A judgment for the plaintiff is materially accurate and a judgment for the defendant is a material error, regardless of the evidence supporting either side. By contrast, a judgment for the plaintiff is procedurally accurate if the plaintiff has proven the elements of her claim by a preponderance of the evidence, and this same judgment would be a procedural error if she did not prove one of more of the elements by a preponderance of the evidence,117 regardless of what actually happened at the stoplight. Note that neither material nor procedural accuracy entails the other?it is possible for a materially accurate judgment to be procedurally erroneous and for a procedurally accurate judgment to be materially erroneous.

And:

The theory of procedural accuracy consists of three premises. First, the law of evidence and the trial proof process function to increase the material accuracy of judgments and to allocate the risk of material error among the parties in a fair and socially desirable manner. Second, the procedural devices of pleadings and motions to dismiss, summary judgment, and judgment as a matter of law function to increase procedural accuracy by aligning outcomes with what would be dictated by evidentiary proof rules at trial. The three procedural devices are serving material accuracy indirectly by aligning outcomes with the evidentiary proof rules, which focus on material accuracy directly. Third, given this alignment function, the procedural devices depend upon the underlying proof rules and thus the standards for implementing the devices ought to be informed by the requirements (and goals) of the proof rules.

Highly recommended.

Full post as published by Legal Theory Blog on April 12, 2010 (boomark / email).