Tag: supreme-court

Sizing the Opposition III

[Ebal’s Plea, twenty-three of thirty-two]

In our last post we observed similarities between Haughwout’s “Refutation” and summary judgment.

Today we explore an important contrast.

Resultantly, we answer a question previously pondered: How do we determine if Haughwout’s declaration is just?

The contrast is this: an authoritative guideline directs a court’s decision on summary judgment. On the other hand, no guide exists for evaluating Haughwout’s “refutation” claim.

For a U. S. Federal District Court that authoritarian guide is Rule 56 of the Federal Rules of Civil Procedure.

In part it reads:

“…The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.”

Admittedly that is a bit of a mouthful.

In fact, significant portions of treatises address those sentences.

Yet, my purpose in citing Rule 56 at this point is not for us to wholly wrap our heads around it.

Rather, it is largely to illustrate a few points.

One is that the U. S. Supreme Court, the authority behind Rule 56, recognizes summary judgment as a severe pronouncement requiring a standard.

Second, before issuing such, a lower federal court must record its compliance with Rule 56’s specific elements of justice and fair play.

What does this suggest for our situation?

It is that we should do likewise.

We should adopt a standard for “refutation” that elicits some sense of justice and fair play and apply it in writing.

Our standard, of course, will lack the authority of the U. S. Supreme Court.

Nevertheless, there is value in stating some standard. Others can then understand how we arrived at our decision. From thence they will be better able to direct their criticism or approval.

What should be our standard?

This I discuss in our next post.

Next post: “A Hypothetical Rule”