The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Why I Post About Pretrial Decisions (on Motions to Dismiss and Such)


A commenter on the Claim That Public School Employee Was Unconstitutionally Fired for Sharp Pro-COVID-Vaccine Post Can Go Forward thread wrote:

Eugene Volokh likes to post about cases that can go forward because they survive some kind of summary judgement. Mostly it just seems to rile up the usual commenters as either a biased miscarriage of justice (if they don't like the claims upheld when viewed in the light most favorable to one side) or as an absolute legal victory (if they like the claims so upheld). How often do such cases get a followup when finally resolved? What benefit* is there to report on such preliminary activity? Why not cases like these but that don't hinge on elements likely to be characterized as "lathering the rubes"?

(*That cases like this may be privately settled before further proceedings would be one argument, that this could be the one chance to discuss such a case. Since I'm not a lawyer, I have no idea whether this case presents anything legally interesting that a case that wouldn't mostly prompt comments on charter schools and vaccines and vaccine mandates and so on. So I could be off base here.)

I thought some other non-lawyer readers might have the same question, so here's the answer: I like to report on court opinions, because the court opinions

  1. become precedent (even if only persuasive precedent, as with trial court decisions);
  2. illustrate how courts apply the legal rules (if the facts are X, then under legal rule Y the result would be Z);
  3. are likely to come to my attention (since I have daily Westlaw searches finding new cases that mention the First Amendment); and
  4. offer publicly available details.

Indeed, I suspect that's why most legal academics mostly write about court opinions.

On the other hand, the final resolution of a case is usually a settlement. A settlement isn't precedent. It doesn't directly illustrate how courts apply the legal rules. It usually won't come to my attention. And it generally isn't public as to its terms (including whether plaintiff got any money or other benefit at all). Moreover, even if the final resolution is a jury verdict—which happens only in a fraction of the cases—it won't come up on my Westlaw queries, so I generally won't learn about it.

Occasionally, the court opinion reflects a resolution of the case, for instance when it denies or grants a motion for judgment notwithstanding a verdict, when it's an appellate opinion affirming a verdict. And of course sometimes court opinions themselves resolve the case, for instance when they grant summary judgment or a motion to dismiss. When any of that happens, I'm definitely open to blogging that (though mostly for the same reasons 1 to 4 above). But I'm also open, for the reasons given above, to writing about opinions that simply allow the case to go forward.