On "On the Merits"
The phrase "on the merits" does important conceptual and doctrinal work on pleading standards, class certification, and the scope of discovery. This paper argues that the concept of "on the merits" is incapable of critiquing procedures because procedures themselves shape determinations of merit. To demonstrate and break this circularity, I draw on insights from the voting aggregation literature in political science. Rational choice theory can trace how different methods of voter aggregation produce different outcomes. The notion of a "will of the people" is unintelligible apart from a voting aggregation procedure. The aggregation method (together with underlying preferences) does not reveal the will of the people, it produces it.
Similarly, the notion of "on the merits" is susceptible to the same interpretation as "the will of the people." The merits of a case do not exist independently from a procedural framework that produces a legal determination, just as the will of the people does not exist independently from a voting aggregation procedure. A case cannot be meritorious unless it can clear the procedural hurdles designed to screen out non-meritorious claims; thus the meaning of merit changes with procedural variation. And just as a change in the voting aggregation procedure changes the expressed will of the people, so too does a change of procedure impact what cases can and do eventually win "on the merits." For example, a change in discovery rules can make it more likely that a party acquires the material necessary to win at trial. As such, it makes little sense to judge the desirability of a change in discovery rules by whether it encourages trials that cannot succeed "on the merits." An endogenous theory of "on the merits" raises grave questions about how to justify the very procedures that define what meritorious means. The final part of this article demonstrates how important doctrinal questions depend on unacknowledged exogenous factors, such as social identities, for determining what cases should move forward. It suggests that "on the merits" might be less about what claims have merit and more about who is deemed to have merit in our current procedural regime.
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