A Quarter‐Century of Summary Judgment Practice in Six Federal District Courts

DOIhttp://doi.org/10.1111/j.1740-1461.2007.00109.x
AuthorJoe S. Cecil,David Rindskopf,Rebecca N. Eyre,Dean Miletich
Date01 December 2007
Published date01 December 2007
A Quarter-Century of Summary
Judgment Practice in Six Federal
District Courts
Joe S. Cecil, Rebecca N. Eyre, Dean Miletich, and
David Rindskopf*
Summary judgment in federal courts has been widely regarded as an initially
underused procedural device that was revitalized by the 1986 Supreme
Court trilogy of Celotex,Anderson, and Matsushita. Some recent commen-
tators believe summary judgment activity has expanded to the point that it
threatens the right to trial. We examined summary judgment practice in six
federal district courts during six time periods over 25 years (1975–2000),
extracting information on summary judgment practice from 15,000 docket
sheets in random samples of terminated cases. We found that when we
controlled for changes over time in the types of cases being filed, the
likelihood that a case contained one or more motions for summary judg-
ment increased before the Supreme Court trilogy, from approximately 12
percent in 1975 to 17 percent in 1986, and has remained fairly steady at
approximately 19 percent since that time. The increase prior to the 1986
trilogy and the modest changes subsequent to the trilogy would be unex-
pected by many legal commentators. Although summary judgment motions
*Address correspondence to Joe Cecil, Division of Research, Federal Judicial Center, One
Columbus Circle, NE, Washington, DC 20002-8002; e-mail: jcecil@fjc.gov. Cecil is Senior
Research Associate in the Research Division of the Federal Judicial Center; Eyre and Miletich
are Research Associates in the Research Division of the Federal Judicial Center; Rindskopf is
Distinguished Professor in the Ph.D. Programs in Educational Psychology and Psychology at the
City University of New York.
An earlier version of this article was presented at the First Annual Conference on Empirical
Legal Studies (University of Texas Law School, 2006). We have benefited from discussion of this
topic with Stephen Burbank, Edward Burnet, C. R. Douglas, Brian Lizotte, Elizabeth Schneider,
and Eric Topor. Our colleagues George Cort, Laural Hooper, Elizabeth Wiggins, and Thomas
Willging provided valuable insights and advice. We also are grateful to an anonymous reviewer
who provided an especially thoughtful and thorough review. Finally, we thank the many
research assistants whose other work at the Center was interrupted by the arrival of a summary
judgment codebook and a pile of docket sheets. The views expressed herein are our own and
not necessarily those of the Federal Judicial Center.
Journal of Empirical Legal Studies
Volume 4, Issue 4, 861–907, December 2007
©2007, Copyright the Authors
Journal compilation ©2007, Cornell Law School and Blackwell Publishing, Inc.
861
have increased over this 25-year period, this increase reflects, at least in part,
increased filings of civil rights cases, which have always experienced a high
rate of summary judgment motions. Surprisingly, no statistically significant
changes over time were found in the outcome of defendants’ or plaintiffs’
summary judgment motions, again after controlling for differences across
courts and types of cases. These findings call into question the interpreta-
tion that the trilogy led to expansive increases in summary judgment. Our
analysis suggests, instead, that changes in civil rules and federal case-
management practices prior to the trilogy may have been more important in
bringing about changes in summary judgment practice.
I. Introduction
Common perceptions regarding summary judgment have undergone a
remarkable transformation in the past two decades. Prior to the Supreme
Court’s trilogy of decisions in 1986,1summary judgment was viewed as an
underused and somewhat awkward tool that invited judicial distrust.2The
trilogy has been widely viewed as a turning point in the use of summary
judgment, signaling a greater emphasis on summary judgment as a necessary
means to respond to claims and defenses without sufficient factual support.
In recent years, summary judgment has been identified as a leading cause
of the drop in trial rate in federal courts3and a threat to the Seventh
Amendment’s right to a jury trial.4
1Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (clarifying the burden placed on the party moving
for summary judgment); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (holding that a
motion for summary judgment must be measured against the standard of proof at trial, and
making the standard of proof for summary judgment the equivalent of the standard for a
directed verdict); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)
(holding that a plaintiff with an inherently implausible claim must support it with more
persuasive evidence than would otherwise be necessary to defeat a motion for summary judg-
ment). A thorough consideration of federal summary judgment practice is found in Edward
Brunet & Martin H. Redish, Summary Judgment: Federal Law and Practice (3d ed. 2006).
2Infra notes 5–11 and related text.
3Martin H. Redish, Summary Judgment and the Vanishing Trial: Implications of the Litigation
Matrix, 57 Stan. L. Rev. 1329–59, 1333 (2005) (“Whatever influence these factors have actually
had in the reduction in the number of trials, however, it is not unreasonable to suspect that one
of the primary contributors to this result, at least at the federal level, has been the Supreme
Court’s substantial modification and expansion of the modern doctrine of summary judgment.”).
4Arthur R. Miller, The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability
Crisis,” and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments? 78
862 Cecil et al.
In fact, little is known about the manner in which summary judgment
functions and the extent to which it has contributed to the recent decline
in civil trials. Published opinions involving summary judgment appear to
have increased in recent years, but analyses based only on published
opinions are unreliable indicators of overall activity because denials of
summary judgment motions are unlikely to be published. Such analyses
may also misinterpret changes in incidence of summary judgment that
arise as a consequence of shifts in the composition of caseloads with no
change in incidence of summary judgment within types of cases. What
changes have taken place in summary judgment practice when unpub-
lished decisions are taken into account? How does summary judgment
practice vary across federal district courts and across different types of
cases? Are increases in summary judgment activity over time due to the
trilogy or to the growth in filings of certain types of cases, such as civil
rights cases, which have historically been especially susceptible to resolu-
tion by summary judgment?
This study examines summary judgment activity in six federal district
courts, measured at six time periods over a span of 25 years. The resulting
picture of summary judgment practice is more complex than is generally
recognized, varying greatly in activity over time, across courts, and across
types of cases. The current findings suggest that when different levels of
summary judgment activity across courts and the changing nature of the
federal caseload are taken into consideration, the likelihood of one or
more summary judgment motions being filed began to increase before the
trilogy.
II. “Common Knowledge”Regarding
Summary Judgment
Overuse of summary judgment is a recent complaint. In fact, underuse of
summary judgment has been a more common concern. In 1948, 10 years
after the adoption of the Federal Rules of Civil Procedure, Judge Charles
Clark noted that most of the new rules were “working their way quietly and
N.Y.U. L. Rev. 982 (2003); Suja A. Thomas, Why Summary Judgment is Unconstitutional,
93 Va. L. Rev. 139 (2007); John Bronsteen, Against Summary Judgment, 75 Geo. Wash. L. Rev.
522 (2007).
A Quarter-Century of Summary Judgment Practice 863

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