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> When cases are, as many of the Trump & allied cases were, thrown out for this reason, the court is making a finding on the merits ... That's not the way lawy

> When cases are, as many of the Trump & allied cases were, thrown out for this reason, the court is making a finding on the merits ... That's not the way lawyers use the term "on the merits". See, e.g., [0]. [0] https://www.law.cornell.edu/wex/on_the_merits https://www.law.cornell.edu/wex/on_the_merits

dragonwriter 6y ago
> That's not the way lawyers use the term "on the merits" I'm fully aware of how lawyers use the term, but that's immaterial to the import being given to the term in this discussion. To the extent that whether a case was decided “on the merits” is being used as a proxy for the argument that the probative value of the evidence actually in the Trump campaign’s hands in claims of election fraud has not been evaluated, it is only valid if you consider any decision (even of “procedural” rather than “on the merits” in traditional legal categorization) where, in fact, that evidence was weighed by a standard at least as favorable as it would be at trial and nevertheless found wanting.
- bdowling 6y ago
  The standard that a court uses when considering a motion to dismiss (e.g., Rule 12(b)(6)) is to first assume all of the facts alleged in the complaint are true. The judge then decides the motion as a matter of law. That is the exact opposite of weighing the evidence, which doesn't happen until trial. Edit: I think we're in agreement that "on the merits" here is being conflated with a trial that considers the probative value of evidence. They are not the same thing.
aw1621107 6y ago
From the last sentence of that link (emphasis added): > The distinction between decisions that rest on the merits rather than on procedural grounds is important because a decision on the merits is considered final and is thus bound by res judicata... Decisions that do not rest on the merits, however, are not bound by res judicata because the claims were not properly heard. Thus, these claims may be brought forth in a subsequent case, excluding dismissals due to a failure to state a claim. In addition, from Federated Department Stores, Inc. v. Moitie [0]: > The dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a "judgment on the merits." See Angel v. Bullington, 330 U. S. 183, 330 U. S. 190 (1947); Bell v. Hood, 327 U. S. 678 (1946). [0]: https://supreme.justia.com/cases/federal/us/452/394/ https://supreme.justia.com/cases/federal/us/452/394/
- bdowling 6y ago
  This is correct. The problem above was conflating "on the merits" with determining facts by considering evidence.
  - aw1621107 6y ago
    > This is correct. Your comment appears to imply otherwise. Did I misread it? > conflating "on the merits" with determining facts by considering evidence. Do you mind elaborating on the difference?
    - bdowling 6y ago
      > Your comment appears to imply otherwise. Did I misread it? My comment wasn't very clear. Sorry about that. Usually we think of a judgment "on the merits" as one that occurs after considering both the law and facts of a case. > Do you mind elaborating on the difference? In the case of a motion to dismiss for failure to state a claim, the judge in theory assumes that the facts alleged in the complaint are all true. If he dismisses the case, it is because as a matter of law the plaintiff cannot win. In such a case it is incorrect to say that the evidence was found to be lacking because the evidence was never considered.
      - aw1621107 6y ago
        > In such a case it is incorrect to say that the evidence was found to be lacking because the evidence was never considered. I feel like now the disputable phrase is "considering the evidence". Is the judge not considering the evidence when deciding that the presented facts/evidence are insufficient to support the complaint, even when assumed to be true? How would such a ruling differ from a hypothetical one where the case goes to trial and the defense does literally nothing? Is the evidence considered in the latter case but not the former?

dragonwriter 6y ago

> That's not the way lawyers use the term "on the merits" I'm fully aware of how lawyers use the term, but that's immaterial to the import being given to the term in this discussion. To the extent that whether a case was decided “on the merits” is being used as a proxy for the argument that the probative value of the evidence actually in the Trump campaign’s hands in claims of election fraud has not been evaluated, it is only valid if you consider any decision (even of “procedural” rather than “on the merits” in traditional legal categorization) where, in fact, that evidence was weighed by a standard at least as favorable as it would be at trial and nevertheless found wanting.

bdowling 6y ago
The standard that a court uses when considering a motion to dismiss (e.g., Rule 12(b)(6)) is to first assume all of the facts alleged in the complaint are true. The judge then decides the motion as a matter of law. That is the exact opposite of weighing the evidence, which doesn't happen until trial. Edit: I think we're in agreement that "on the merits" here is being conflated with a trial that considers the probative value of evidence. They are not the same thing.

aw1621107 6y ago

From the last sentence of that link (emphasis added): > The distinction between decisions that rest on the merits rather than on procedural grounds is important because a decision on the merits is considered final and is thus bound by res judicata... Decisions that do not rest on the merits, however, are not bound by res judicata because the claims were not properly heard. Thus, these claims may be brought forth in a subsequent case, excluding dismissals due to a failure to state a claim. In addition, from Federated Department Stores, Inc. v. Moitie [0]: > The dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a "judgment on the merits." See Angel v. Bullington, 330 U. S. 183, 330 U. S. 190 (1947); Bell v. Hood, 327 U. S. 678 (1946). [0]: https://supreme.justia.com/cases/federal/us/452/394/ https://supreme.justia.com/cases/federal/us/452/394/

bdowling 6y ago
This is correct. The problem above was conflating "on the merits" with determining facts by considering evidence.
- aw1621107 6y ago
  > This is correct. Your comment appears to imply otherwise. Did I misread it? > conflating "on the merits" with determining facts by considering evidence. Do you mind elaborating on the difference?
  - bdowling 6y ago
    > Your comment appears to imply otherwise. Did I misread it? My comment wasn't very clear. Sorry about that. Usually we think of a judgment "on the merits" as one that occurs after considering both the law and facts of a case. > Do you mind elaborating on the difference? In the case of a motion to dismiss for failure to state a claim, the judge in theory assumes that the facts alleged in the complaint are all true. If he dismisses the case, it is because as a matter of law the plaintiff cannot win. In such a case it is incorrect to say that the evidence was found to be lacking because the evidence was never considered.
    - aw1621107 6y ago
      > In such a case it is incorrect to say that the evidence was found to be lacking because the evidence was never considered. I feel like now the disputable phrase is "considering the evidence". Is the judge not considering the evidence when deciding that the presented facts/evidence are insufficient to support the complaint, even when assumed to be true? How would such a ruling differ from a hypothetical one where the case goes to trial and the defense does literally nothing? Is the evidence considered in the latter case but not the former?