Summary Judgment Is Constitutional

• Author: Edward Brunei
• Position: Henry J. Casey Professor of Law, Lewis & Clark Law School
• Pages: 03

Henry J. Casey Professor of Law, Lewis & Clark Law School. I thank Stephen Raher and Wendy Hitchcock for valuable research assistance and Al Alschuler, Tomas Gomez-Arostegui, Alexi Lahav, Bill Nelson, Peter Nycum, James Oldham, Marty Redish, Steve Subrin, and Suja Thomas for comments. Any errors are my own.

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I Introduction

While no device precisely like summary judgment existed at common law, pre-1791 judges used a pretrial procedure to decide obvious facts in a manner analogous to a Federal Rule of Civil Procedure 56 motion for summary judgment. First, this Article will analyze this common-law procedure, trial by inspection, and find it a comfortable antecedent to modern summary judgment. Second, it will contend that the argument that summary judgment is unconstitutional depends on a rigid, erroneous interpretation of the Seventh Amendment. Courts should use a modern, more "pragmatic," Seventh Amendment approach that eschews a mirror image between a common-law procedure and its descendant. Instead, the proper interpretation is consistent with summary judgment as long as it differs from its historical antecedent in incidental ways. This less rigid, pragmatic approach to the Seventh Amendment is itself rooted in the common law, which was flexible and utilitarian in nature; pre-1791 English courts were overtaxed and strained for resources and thus constantly tinkered with procedural changes.¹ The expansion of special merchant juries, the development of evidence rules to bar confusing evidence from the jury, and the common-law courts' borrowing procedures used by equity courts each demonstrate that common-law courts modified their procedures for utilitarian reasons. The common law's flexibility justifies use of a more liberal interpretation of the Seventh Amendment. Although summary judgment is different from trial by inspection or demurrer to the evidence, it differs in only incidental ways and, therefore, is constitutional.

This Article will not quarrel with the notion that improper application of summary judgment raises serious constitutional questions. My co-author Martin Redish and I have said that summary judgment rests on a "tenuous constitutional foundation."² At common law, judges usually did not decide issues of historical fact. Modern constructions of Rule 56 likewise continue this allocation of function.³ Whenever an appellate court reverses a grant of summary judgment on the basis that the trial court decided a genuine issue Page 1628 of material fact-a common occurrence-the appellate court essentially finds the work of the trial court unconstitutional.

Professor Thomas should be commended for making the argument that summary judgment is unconstitutional and for properly placing her argument in a historical interpretation.⁴ The plain meaning of the text of the Seventh Amendment requires some sort of historical connection to the common law that existed in 1791 at the time of the Seventh Amendment's adoption.⁵ Moreover, the constitutional question posed by Professor Thomas is especially timely. Summary judgment is under attack.⁶ Professor Burbank has rightly underscored the need to base arguments regarding summary judgment upon empirical data⁷ and recent empirical studies paint a mixed picture of both increased use of summary judgment and a summary-judgment-filing rate of 17 to 21 per 100 cases terminated-hardly a number to invoke a crisis mentality⁸

Nonetheless, it is overly broad for Professor Thomas to suggest boldly that summary judgment is always unconstitutional; there are many instances where summary judgment passes constitutional muster. Whenever judges improperly decide factual issues, summary judgment is unconstitutional. In contrast, judges may constitutionally grant summary judgment based upon either legal principles or obvious facts because they have been doing so for several centuries. Page 1629

Several thoughts about methodology should be aired at the outset. Like Professor Thomas, I am both a researcher of history and an advocate. I concede that these two roles are conflicting and can cause a reader to doubt the many judgment calls made in this Article. I have tried to quote extensively, even in text, to provide the reader a genuine opportunity to form an independent judgment about the language used by old cases and commentary. The severity of this problem of dual roles and admitted author bias is mitigated, hopefully, by the lengthy quotations themselves.

Part of this Article assumes the legitimacy of some type of historical test of the Seventh Amendment right to jury trial.⁹ Under this textual approach, the Seventh Amendment "preserves" a right to jury trial as it existed at common law. To make my case that summary judgment is constitutional, I need to demonstrate that a procedural device like summary judgment existed at common law. In order to clarify my approach, I consider these to be the basic indicia of summary judgment¹⁰:

* a pretrial device;

* allocating a decisional task to the judge in a case otherwise tried by a jury;

* confining the judicial task to decide questions of fact that are obvious and could lead to but one answer;

* allocating a decision to the jury where the determination of the issue is uncertain or doubtful; and

* articulating a policy goal of judicial efficiency.

Any common-law procedure that meets these criteria is a blueprint for modern summary judgment and an appropriate historical antecedent for summary judgment.

My willingness to insist on use of some variety of historical test is driven by textualism and the Seventh Amendment's command that the right to jury be "preserved."¹¹ My concurrence with Professor Thomas does not mean that I concede the use of her static and inflexible reading of the historical Page 1630 test.¹² The weight of scholarly authority has rightly criticized a narrow, inflexible application of the historical approach.¹³ As I will set forth in Part III, I read the case law landscape as properly evolving into a modern interpretation of "preserved," which will uphold any new procedure that has a reasonable historical antecedent; exact mirror images between old and new procedures are unnecessary¹⁴ and not required in this more pragmatic, constitutional interpretation.¹⁵

II Pre-1791 Procedures Included a Summary-Judgment Analog: Judicial Fact Finding by Trial by Inspection

Although the common law lacked a transsubstantive¹⁶ procedure exactly like summary judgment, one established procedure, trial by inspection, bears a remarkably close resemblance to summary judgment and Page 1631 justifies the conclusion that a summary-judgment procedure existed historically in or around 1791.

A The Classic Commentators: Blackstone's and Coke's Versions of Trial by Inspection Demonstrate a Clear Lineage to Modern SummaryJudgment

1. Blackstone's Treatment of Trial by Inspection

Trial by inspection or examination was a common-law procedure that allowed the trial judge to decide obvious factual issues rather than submitting them to a jury. under this essentially pretrial procedure, a judge would summon a party to the courtroom, take evidence, and adjudicate a critical issue without the assistance of a civil jury. Blackstone, writing in the eighteenth century, describes trial by inspection in this way:

[W]hen for the greater expedition of a cause, in some point or issue being either the principal question or arising collaterally out of it, but being evidently the object of sense, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute. For where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it; who are properly called in to inform the conscience of the court in respect of dubious facts; and therefore when the fact, from its nature must be evident to the court either from ocular demonstration or other irrefragable proof, there the law departs from its usual resort, the verdict of twelve men, and relies on the judgment of the court alone.¹⁷

The essence of the described procedure is pretrial judicial fact finding of key issues presented where the result was likely to be obvious. Blackstone's description of trial by inspection closely approximates summary-judgment procedure. under the trial by inspection process set forth by Blackstone, the judge clearly was permitted to usurp the fact-finding function normally allocated to a civil jury.

Though Blackstone is referring to trial by inspection, he is clearly describing an ancient¹⁸ procedure that smacks of summary judgment. Three summary-judgment-like policies animate Blackstone's characterization of trial by inspection. First, it appears that judicial economy motivates the trial-by-inspection device.¹⁹ Efficient courtroom management was critical to common-law courts and is demonstrated by the development of trial by Page 1632 inspection that allowed the courts to decide easy issues...