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Tuesday, February 06, 2007

Summary Judgment on the Line

Suja Thomas has written an interesting and provocative article entitled Why Summary Judgment is Unconstitutional, which will be appearing in the Virginia Law Review.  Here is the abstract:

Summary judgment is a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (e.g., civil rights), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Company v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Article is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that [i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. The Supreme Court has held that common law in the Seventh Amendment refers to the English common law in 1791. This Article demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles of the English common law. The Article concludes that despite the perceived necessity and uniform acceptance of the device, summary judgment is unconstitutional. The Article also responds to likely objections and explores the far-ranging ramifications of this conclusion.

Posted by Danielle Citron on February 6, 2007 at 03:38 PM in Constitutional thoughts | Permalink


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I agree with those who point out that Genug's cramped view of good legal scholarship ignores the surprising constitutional developments that many would have scoffed at years before they occurred. Morever, while Genug may have a point with respect to some legal scholarship out there, the comment seems particularly misdirected when it comes to the scholarship of Professor Thomas, who has a significant and distinguished background in litigation practice. This background informs and enriches her scholarship. That she is taking advantage of her second career in academia to think outside the box and advance novel theories should be admired by anyone who values engaged scholarship.

Posted by: Caitlin Borgmann | Feb 7, 2007 6:59:50 PM


I think ten years ago most people would have laughed at you if you said (1) the Confrontation Clause protects people from testimonial hearsay and does not ensure the reliability of evidence and (2) the sentencing guidelines are unconstitutional because they enhance sentences based on facts found by a judge rather than a jury. Yet now we have Crawford and Booker.

The importance of the jury and originalist interpretation of the Constitution are at a high among the justices right now and they may be more receptive to an argument against summary judgment than you might think.



But who is the one making the determination that there is no genuine issue as to any material fact? The judge! One side in a summary judgment battle usually does its best to show that there is a genuine dispute of fact. The judge is arguably usurping the traditional factfinding function of the common law jury. Why should the judge be any more expert in determining whether there's a dispute over the facts than a twelve person jury?

Not saying the author is right, but he does have a good point.

Posted by: Stephen Aslett | Feb 7, 2007 2:06:34 PM

I disagree with Genug that thinking about fundamental issues in the balance of power between judges and juries is useless. I don't think anyone saw the Jones-Apprendi-Blakely-Booker revolution coming more than a few years out. Even if no court would hold that Rule 56 is unconstitutional, it's important to think about the fundamental issues so that we can think about the peripheral issues more clearly. Knowing exactly why Rule 56 is constitutional might make a big difference to how we resolve other issues, just like knowing why the 14A is constitutional might make a big difference to how we think about the New Deal. Philosophers don't tend to care very much about civil procedure, of course.

I agree with Simon that rules 50 & 56 are limits on juries' power to nullify. In the civil context, though, it's not just about giving juries the opportunity to show mercy to particular people; it's about giving juries the opportunity to take piles of money away from defendants without a proper legal basis.

Posted by: Chris | Feb 7, 2007 12:17:38 PM

This article exemplifies everything that is wrong with legal scholarship these days. It is irrelevant if summary judgment is unconstitutional; no court will ever hold so, as it is too central a pillar of our judicial system. Does the existence of this article affect _anything_?

Why don't law professors try to write about something relevant to the practice of law? Enough with this theory blather. Somehow theory is viewed as more prestigious than practice, but 99% of the time theory ends up being theory for theory's sake. Go teach philosophy if you want that, not law. And why don't student law review editors realize that the reason no one reads law review articles is because they seldom have any relevance to what lawyers, judges, and policymakers do?

Posted by: Genug Shoyn | Feb 7, 2007 10:30:21 AM

As I understand it, summary judgment is only appropriate where there are no material questions of fact at issue, so the case turns purely on a question of law, doesn't this question fold into the question of jury nullification? If the power of the jury extends only to judging facts rather than the law, and the case turns on law not fact, surely there's no problem here. If the converse, however, wouldn't that support Thomas' view?

Posted by: Simon | Feb 6, 2007 10:46:23 PM

That link doesn't work for me, but here's one that does.

I don't see why the Rule 56 procedure should be trouble if the Rule 50 JMOL procedure is OK. Both of them apply the same substantial evidence, could-a-reasonable-jury-so-find standard. I took a look through the article; the paragraph at 42-43 considers the argument but the answer doesn't make much sense to me. "[S]ummary judgment is employed prior to the presentation of any evidence..." That's not right; there are affidavits, depositions and so on. The Rule 56 Q is whether, if there were a trial and the witnesses said the same thing, a reasonable jury could find for the non-moving party. That question is independent of the existence of an actual trial. Why bother having one, if we can know in advance what the answer would be to the Rule 50 Q? "[T]he court examines deposition transcripts and affidavits without
hearing the witnesses themselves." But that's no different from the position of a court on appeal, who can reverse the denial of a Rule 50 motion in any event.

Posted by: Chris | Feb 6, 2007 6:42:56 PM

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