For now, just read, we’ll talk later (hint, could Vince be right?)

First, please read this article from Sunday’s Atlanta Journal Constitution regarding employment litigation in the Northern District of Georgia and the fact that almost all such cases get pitched at the summary judgment stage. Now, read the empirical study that forms the predicate for the study. The study is on the Social Science Research Network. You can download it easily and for free. Don’t worry,the study consists mostly of tables. It is a quick read.

After you have read the article and the study, give me your thoughts. I will add mine tomorrow. I end with only this question: “Is Vince right?”


18 responses

  1. I don’t know what point we are evaluating and I,of course, do not have time to to totally digest the study, but it appears clear that plausibility pleading has probably increased the number of summary dismissals. Is that good or bad? I think it is bad. Yes, it will weed out a bunch of ill-fated cases that would waste everyone’s time. However, it also throws out a lot of precious babies with that bath-water.

    Many times a valuable and well-founded claim can’t survive an Iqbal test until discovery is completed. Iqbal rewards stone-walling on the part of Defendants. Those that most successfully suppress the truth are rewarded. Iqbal implicitly draws a distinction between those cases where – at the case’s inception – the crucial evidence is in the hands of the Defendant and those where it is not. That is not a valid basis on which to decide whether a case may proceed. In addition, it motivates a Defendant even to lie about what it knows knowing that it will never be caught after the case is dismissed. Frankly, Iqbal is an idiotic solution to whatever problem the tort-reforming mind-set is attempting to solve.

    Ultimately Iqbal takes power away from the people.

  2. The newspaper story did not point out the 100 percent dismissal rate in sex and race cases as set out in the study.

    The 7th Amendment is as one commentator said “being eviscerated” by the summary judgment standard seemingly being changed from the necessity of plaintiff demonstrating a “material disputed fact” to now being required to demonstrate (s)he has a slam dunk case.

  3. There were many numbers that were left out of the story. For example, the AJC compared the 70% national dismissal rate for cases being dismissed in part or in whole to our 82% dismissal rate – which dismissed the cases in full. In Atlanta, the comparable statistic is 70% and 94%.

    What you also didn’t see was what the statistics showed when it came to race and sex harassment cases, or how women and African Americans are treated differently than white employees. For example, in 2011 and 2012, 100% percent of racial harassment cases were dismissed by a judge, regardless of how many times that employee was called the n* word by his boss. All but one sexual harassment case was dismissed by the court, finding that no matter what was said or done, the judge, not a jury of her peers, decided it wasn’t bad enough. And when a white male brought a claim for race discrimination in those two years, he had a 40% chance of losing. A black female – 93%.

    Having heard that the problem is the law of our circuit, we expanded the study to the Northern District of Alabama, a state with no state laws (like Georgia) and within our circuit. With essentially the same sample size, rather than dismissing 82%, 66% were dismissed in full. Rather than letting 6% past summary judgment unscathed, Alabama let 12%. Statistician Dr. Michael Freeman has already concluded that this a statistically significant difference.

    The problems are not limited to Georgia. In every jurisdiction, civil rights cases are dismissed at a higher percentage than other case types by judges at summary judgment, and at the pleading stages now. People have a constitutional right to have their case decided by their peers, not by one person standing alone. Why are civil rights cases not afforded these rights?

  4. with all due respect, i take issue with your comment that “people have a constitutional right to have their case decided by their peers.” you appear to be asserting that every person that files a federal lawsuit has the constitutional right to have their claims resolved by a jury rather than a judge. the constitution provides no such thing. the seventh amendment simply provides that (in certain matters), “the right of trial by jury shall be preserved.”

    i do not read this as precluding any and all “gate keeping” functions (e.g., Rule 12(b)(6) or 56 motions), but instead as providing that IF a case “goes to trial” (i.e., proceeds through these (or any other) preliminary gates) that the parties retain the right to have the matter resolved by a jury (rather than a judge or other person/group).

  5. read that note/article several years ago and found it quite unpersuasive. it is no more persuasive with the passage of time.

  6. I don’t entirely buy its argument either, but your argument seems equally extreme in the other direction. Do you think the 7th Amendment imposes no restraints on the height of the “gatekeeping functions” courts may adopt to purge cases before trial? As long as it’s not called a “trial,” it’s ok not to have a jury involved?

  7. n my client’s recent racial discrimination case in the Northern District of Georgia, the magistrate judge, in his R&R, clearly did not follow the standard for determining whether summary judgment was appropriate. He did not construe the deposition testimony of the witnesses, and all reasonable inferences derived from their testimony, in a light most favorable to Plaintiff, as the non-moving party on the issue of discrimination. This is likely one of the most common reasons that magistrate judges recommend granting summary judgment. Our reasoned objections, of course, fell on deaf ears.

  8. your question is much different than the comment to which i initially responded. i responded to the inaccurate statement that the constitution precludes any sort of judicial gatekeeping. to recognize that the constitution permits some form of gatekeeping should not be confused as approval of any and all gatekeeping functions.

    that being said, i am definitely NOT one of the people wringing her hands over Iqbal, Twombly, and the application of Rule 56. i consider these particular thresholds to be a reasonable and appropriate method of allocating a very scarce societal resource (judicial time and resources).

    i particularly disagree with the notion that Iqbal cannot be overcome absent discovery or some other discovery mechanism. Iqbal does not require a plaintiff to present evidence, but instead merely requires a plaintiff to allege FACTS rather than legal conclusions in her complaint.

  9. I didn’t read the original statement to be saying that the constitution “precludes any sort of judicial gatekeeping.” I think Vince was just arguing that the pendulum has swung too far in one direction.

    Even aside from one’s views on the merits of that, I do think the extent to which federal and state courts are perceived to differ in their treatment of MDs and MSJ (or state equivalents) has elevated forum shopping and removal practice to a really unseemly level. Frequently settlement of a case is based on little more than what court it ends up in after a few months of removal and remand motion practice.

  10. i was not responding (initially) to Vince’s comments, but was instead responding to Amanda’s comment that “people have a constitutional right to have their case decided by their peers” and her inaccurate position that the constitution precludes any sort of judicial gate-keeping.

    as for the perception that state courts engage in less judicial gatekeeping than federal courts, such reflects (to me) a difficulty with state courts not the federal courts.

  11. I do not take the position that the constitution precludes any type of gate keeping. There are cases that should be dismissed at summary judgment, and in other types of cases, those dismissal rates are around 30%. But, there is no denying that when some judges dismiss 100% of the employment civil rights cases before them, the gates are simply closed.

  12. the fact that a higher percentage of employment cases are dismissed on summary judgment, by itself, says absolutely nothing about the merit (or lack thereof) of the cases in question. neither law nor logic supports the idea that plaintiffs are entitled to have a certain percentage of cases survive summary judgment and proceed to trial. employment cases are difficult to win and the cases in question may have been dismissed for the simple reason that they lacked sufficient merit. unfortunately, the analysis in question fails to shed any light on this particular (and far more relevant) question.

  13. Jay,

    As an aside, the removal practice gives us fits. What do we do with motions pending in the state court but not ruled upon when the case is removed? The next iteration of our local rules will address that subject. That should occur tomorrow, and publication of the rule change will be made right after that.

    All the best.


  14. Sharmanlaw,

    Without intending to take sides about your case and without intending to agree with your criticism of the magistrate judges (after all, I used to be one), you point out a real weakness in the analytic that we judges employ. What the hell is an inference that is “reasonable?” Thanks for taking the time to write.

    All the best.


  15. Jay,

    As an exercise is good scholarship, the article is outstanding. Moreover, and on a practical level, the professor makes very intriguing points about costs.

    From her article, the following occurred to me:

    If we eliminated summary judgment practice and almost all discovery and pleading practice there might be more money left in everyone’s pockets but the lawyers. If that is true, and I don’t know whether it is (empiricists: “on your mark, get ready, go”), we ought to dump these practices, including SJ motions, entirely.

    With regard to summary judgment, Judge Mark Bennett has even suggested eliminating such a practice as a test. I might go even further. An inventive court might structure a “two track” program, where one track would seriously limit discovery and all motion practice in employment cases, and the other track would not do so in employment cases. This would get at the issue from an empirical perspective. There are some really hard practical problems with setting up such a two-track test program, but with enough pressure from judges, it might be possible. Frankly, I don’t whether I would support such a thing, but I am open to discussing it.

    All the best.


  16. Pingback: When it comes to employment cases, judges are killing the Civil Rights Act of 1964 « Hercules and the umpire.

%d bloggers like this: