The Death of Inference

INTRODUCTIONWhen people do bad things, they have a motive to avoid getting caught. So sometimes they lie. This is such a familiar concept that we have common cultural reference points. Think of the child who denies stealing from the cookie jar (popularized by a children's song game) or the cliche of the teenager who denies responsibility for a new dent on the car. The wrongdoer in these situations hopes that the lie-a direct denial of the accusation-will stymie any effort to uncover the truth of the wrongdoing.But the liar's demeanor and inconsistent explanations may expose the lie, especially when the accuser has an opportunity to probe. And when the coverup fails, the natural inference is that the accusation was true. In other words, the circumstantial evidence exposing the lie leads to the inference, based on our human experience,1 that the truth is in fact the opposite of the lie.2The ability to draw that type of inference is a critical tool in our quest to form judgments about our interactions as we go about our everyday lives. Do I believe this politician? Can I trust that salesperson? Should I hire this job applicant? These interactions do not necessarily involve lie detection, but they do implicate more general notions of trustworthiness that are integral to our routine decision making. Daily life often requires us to determine what we believe is going on in someone else's head.3One might therefore expect that similar inference-drawing tasks would be integral to our judicial system, which ostensibly prides itself on the role of jurors, as ordinary citizens with a diversity of human experiences, to resolve disputes.4 Indeed, under the Seventh Amendment,5 civil jury trials are a fundamental right.6 To be sure, jurors are still routinely vested with the task of determining witness credibility in cases that go to trial7 and are generally given instructions about the value of circumstantial evidence.8 But judges now enjoy ever-greater power to dispose of cases-and thus to draw their own inferences-instead of honoring the historic tradition of permitting juries to evaluate competing inferences. And they do so based on paper records instead of live-witness trials.The expansion of judges' power is a recent trend. The erosion of the historic right to a jury in civil cases is tied to modern concerns about both the costs of litigation9 and the greater complexities of civil disputes.10 If these considerations have warranted a reexamination of the right to a jury trial, then perhaps we might have expected an explicit cost-benefit analysis addressing the competing interests.11 But that is not what we got.Instead, the judiciary has systematically undermined the powerful tool of inference drawing, which was once a hallmark of the factfinder's evaluation of evidence, without grappling with the attendant Seventh Amendment problem. The trend is particularly onerous for plaintiffs alleging a defendant's nefarious state of mind, such as claims of discrimination, fraud, or conspiracy, where defendants may have exclusive access to the facts surrounding plaintiffs' claims.12 This usurpation of the jury's role has recently led to a remarkable movement away from the once-venerated civil trial.13 One commentator conservatively estimates that recent changes in pleading standards alone have had a negative impact on plaintiffs in about one out of every five cases.14 And changes in pleading standards are only part of the story. The slow but steady eradication of the jury's inference-drawing domain over the last several decades has led us to a quiet acceptance of a devastating reality that infects not only our system for resolving disputes, but also the important role that diverse jurors play in reaching verdicts that reflect our values and shape our norms. Thus, the notion that our judicial system openly allows plaintiffs to resolve their disputes fairly is false.15This Article explores, and argues for the restoration of, the jury's role as inference drawer, while simultaneously recommending protections to avoid letting plaintiffs and juries run amok. …