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.

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

IANAL and I appreciate them as a cheap $-free education. Even the commenters who sneer at posts, authors, and each other provide some education, probably the Rev being the only exception.

[Mr. Bumble]

...and like a fly on a fresh dog pile the Rev. comes through below.

[JesusHadBlondeHairBlueEyes]

Thank you for sharing your reasoning. Makes perfect sense.

[Rev. Arthur L. Kirkland]

Most of this is just lathering the right-wing rubes.

Not all.

But most.

[Bored Lawyer]

Bell rings, dog salivates. -- Dr. Ivan Pavlov

[Lee Stillman]

If you're the only one who hears the dog whistle, you're the dog.

[Rev. Arthur L. Kirkland]

That is this white, male, right-wing blog in a nutshell.

A predictable stream of transgender parenting-white grievance-drag queen-Muslim-transgender rest rooms-racial slur-male grievance-transgender sorority drama-Black crime-incel grievance-transgender everything else posts, precipitating a flood of comments heavy on bigotry, bitching, delusion, and backwardness.

[JesusHadBlondeHairBlueEyes]

That is the interesting stuff that's being litigated right now, you doofus.

If you Marxists wouldn't be pushing your sickening and twisted ideology and oppressing everyone, none of those things would be in the news.

[Rev. Arthur L. Kirkland]

What the Volokh Conspiracy finds interesting is controlled by partisan flutters (and by a fear of offending Leonard Leo, Donald Trump, and the Alito and Thomas families). Lots of transgender and racial issues; not so much things that would displease Trump or Leo.

[Randal]

What Marxists? What oppression? You seem to be in the grip of some unhealthy delusions.

If you want some examples of actual oppression, take a look at the book banning laws and medical procedure bans that the Republicans are doing. Or Louisiana’s Ten Commandments law.

[ThePublius]

No one's banning books, they just object to porn in school libraries. And no one's banning medical procedures, they just object o mutilating children under the age of consent and/or without their parents' knowledge.

[John F. Carr]

I was thinking recently about some cases that got a lot of attention in Massachusetts. Both of them settled after a court order refusing to dismiss the case.

In 1998 a girl walked onto railroad tracks after a train passed but before the gates went up. Surprise! There was a second train coming and it killed her. The allegation that the second train's whistle was blown late was enough to survive a motion to dismiss notwithstanding her status as a trespasser. The case was settled soon after the Supreme Judicial Court ruled that the case could go to trial. Juries don't like trucks and trains. This one is precedential.

In another a woman was raped and murdered while waiting for roadside assistance with her disabled car. AAA got sued. The trial judge ruled the case could proceed as a tort (AAA killed her) rather than breach of contract (here's your $50 back). The lawsuit settled during trial. This one is not precedential.

[Krayt]

There are a number of videos of people killed by a second train on dual tracks. Either the first train is idling, or both are moving. In any case, the noise of one masks the other, and people go around, or through once the first (and, erroneously, presumptively only) train passes.

[Jett's Pop]

The Webb case that was the subject of the original post was significant because the Court did resolve certain important issues under the Pickering balancing test. Specifically, it held that certain parts of the employee's speech (the Facebook posts) were on a matter of public concern and that the employee's interest in that speech outweighed the employer's concerns about how its operations might be affected by the speech. It's true that the court concluded that there were issues of fact on other significant matters (like whether the employer would have taken adverse action anyway for other reasons), but the matters that were resolved on summary judgment were not trivial. See FRCP 56(g) (even if the court does not grant all the relief requested, it may identify matters that are not in genuine dispute).

[Bored Lawyer]

Motions to dismiss and summary judgment are rulings of law. Sometimes they focus on whether the facts pleaded or evidentiary record suffices to sustain a claim. But sometimes they focus on the legal side. So they can be quite important for their legal contents. Not always, but often enough that it's worth writing about select ones.

[Dr. Ed 2]

I think they are important because a lot of colleges have the legal tactic of doing nothing until the suit is actually filed and makes it past the motion to dismiss, and then settling it with a nondisclosure agreement. The goal is to prevent the public claim that what the institution is purportedly legal because they haven't lost a lawsuit over it.

Take UMass Amherst -- you really have to look at suits as they are filed, with the appropriate caveats, because the cases are going to disappear. UM doesn't even go with a motion to dismiss, if there is merit to the suit, they just make a settlement offer to make it go away -- and keep it out of the news.

And then when the administrator(s) that was involved in the suit quietly disappears to a new job a long ways away, you kinda know that the suit had merit....

[JesusHadBlondeHairBlueEyes]

Is that the one where the globalist fascists went after that innocent White 1776 patriotic bakery then kept ignoring the court orders to make them whole when they lost in court?

[David Nieporent]

goal is to prevent the public claim that what the institution is purportedly legal because they haven’t lost a lawsuit over it.

That not sentence, but you understand that you're describing ordinary litigation and not something special about colleges, right?

[Area Man]

Or, you know, it’s your blog and you can post about whatever the fuck you want without having to explain yourself. I appreciate your effort at addressing a comment; that’s commendable. But people who complain about what a private person writes about on his own blog are so damn annoying. And those who complain about it being ideologically partisan are even worse. Yeah, no shit, it’s an openly partisan blog. Don’t like it, don’t read it. At least it’s not pretending to be otherwise, unlike a lot of other media sources, including other legal blogs, websites, and podcasts.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Amen.

[Rev. Arthur L. Kirkland]

The former professor gets to blog about whatever he likes.

Commenters get to mention the cowardice, hypocrisy, and bigotry associated with those decisions (except when the Volokh Conspiracy censors liberals and libertarians).

The Volokh Conspiracy also gets to pretend it is "often libertarian." Faux libertarian right-wingers have rights, too.

[Bored Lawyer]

#TiresomeTroll

[LawTalkingGuy]

This is entirely vibes based but a good opinion either denying an MSJ or a reversal of a trial court’s grant always seem notable to me. A grant and affirmance on appeal often mean it likely wasn’t a great case to begin with. Stronger cases will often settle without ever having MSJ brieifng or before a ruling. The same arguably applies to a weaker case where the plaintiff accepts a low settlement offer in light of a strong MSJ.

But cases where one side seem completely convinced of the strength of their MSJ, the other side seems convinced of their BIO, and the court agrees with the non-moving party are always interesting to me. It’s always a good insight into what facts a judge thinks make a difference. This is especially true if you’re also considering state court where the trial court might not even write an opinion on a denial.

[Publius_2020]

Of course, there's a long and storied history to non-lawyers failing to appreciate the procedural posture of a case, and confusing a pleadings ruling from a final judgment on the merits. But... there is an important element to pleadings rulings, which EV hints at when he says "illustrate how courts apply the legal rules (if the facts are X, then under legal rule Y the result would be Z,"

A ruling on a pleadings motion (a 12b for failure to state a claim) tells us whether such a legal claim exists on the stated (alleged) facts. In the modern law, that's a big deal -- because people are often stretching to allege new claims. Or trying to defeat such stretched claims. And so the 12b ruling says "the law recognizes such a claim, assuming all the facts are right," or the ruling says the opposite: "no such claim on these facts." That's important (either way). Because it effectively "defines the law."

[Sidney r finkel]

Well said Prof, Volokh

[Randal]

Eugene, you failed to answer the most interesting question:

Why not cases like these but that don't hinge on elements likely to be characterized as "lathering the rubes"?

[Eugene Volokh]

Why not other unspecified cases that the commenter thinks I ought to be writing about -- but that the commenter doesn't even bother to describe in any meaningful way? There are answers to questions like that?

[Randal]

It seems like you prefer cases about trans kids, drag queens, vaccine mandates, and the like.

Do you think

a) that's a misperception because people just don't notice your non-culture-war posts?

b) lawsuits themselves are disproportionately about those issues and the distribution of cases you post simply reflects that?

c) you do prefer posting about cases relating to topics of special interest to this blog's audience?

[Eugene Volokh]

1. You can see for yourself by going to the list of all the free speech posts (some are other Reason authors', but most are mine) at https://reason.com/category/civil-liberties/free-speech/. You'll see, for instance, that my five free speech posts related to court cases (or administrative cases) immediately preceding this one involved (a) a restriction on signature gathering that targeted an initiative to regulate private schools, (b) a prosecution of a "racial justice" activist for shouting in a bullhorn at city employees, (c) a Florida court reading an anti-riot law as focusing on violence, (d) a court concluding that professors' accusing a colleague and students of racism wasn't constitutionally protected, and (e) a trademark appeals board concluding that "FUCKSHITUP" isn't trademarkable. Those just happen to be the most recent five, but they're pretty representative of the sorts of things I blog about. None are about trans kids, drag queens, or vaccine mandates. Likewise with the post that I scheduled yesterday for posting today, about a man who sued for slander someone who had called him "litigious."

2. So then the question is what you call "culture war" posts. If you define the term broadly enough to include a wide range of controversial matters (e.g., to include regulation of private schools, racial justice activism, riots, racism accusations, and vulgarity), then, yes, my sense is that a huge proportion of recent free speech cases generally is about these sorts of controversial matters, because controversial speech is more likely to be restricted. If you define "culture war" narrowly to be trans kids, drag queens, and vaccine mandates, then the great bulk of my free speech posts are unrelated to that.

3. At the same time, all else being equal, I do prefer to write about more interesting topics than more bland ones -- as, I think, do nearly all writers. Refusal to register FUCKSHITUP is more likely to draw my attention than refusal to register Good Burgers or some such. Likewise for a man being ejected from a city council meeting in part for shouting "chicks with a dick" "multiple times"; of course I'm going to blog about a fact pattern as surreal as that. Conversely, if there's some government employee speech case related to someone being fired because they opposed their boss in a local election campaign, that's less likely to draw my attention.

4. Finally, as you can tell from my pseudonymity posts, I blog about legal issues and fact patterns that I find interesting. If our readers find them interesting, all the better, but it's really all about me.

[Bill R]

I enjoy learning about the legal reasoning behind these things, so thanks. And new phrases like "lathering the rubes", so there's that too.