Rethinking summary judgment empirics: the life of the parties.

• Author: Gelbach, Jonah B.
• Position: Symposium: The Federal Rules of Civil Procedure at 75

INTRODUCTION I. LIVE PARTIES AND SUMMARY JUDGMENT STANDARDS II. JUDGE CHARACTERISTICS AND PARTY BEHAVIOR III. SUMMARY JUDGMENT MOTION FILINGS AND JUDICIAL CHARACTERISTICS: NEW EMPIRICAL EVIDENCE A. Data Construction B. Summary Data on Judge Characteristics C. Estimation Results CONCLUSION INTRODUCTION

It hardly needs saying that summary judgment has been a controversial topic. The device was, by many accounts, long a sleepy backwater of the procedural countryside. To that effect, it is fitting, at the seventy-fifth anniversary of the Federal Rules of Civil Procedure, to take note of Judge Charles Clark's pushback in the 1950s against the suggestion that summary judgment was inherently problematic. Conceding that "[i]t is obvious that judges should be careful not to grant judgment against one who shows a genuine issue as to a material fact," Judge Clark went on to write,

Just as obvious is the obligation to examine a case with care to see that a trial is not forced upon a litigant by one with no case at all. The very freedom permitted by the simplified pleadings of the modern practice is subject to abuse unless it is checked by the devices looking to the summary disclosure of the merits if the case is to continue to trial. Those are discovery, summary judgment, and pre-trial--all necessary correlatives of each other and of a system which may permit concealment of the weakness of a case in the generalized pleadings of the present day. Refusal of summary disposal of the case may be a real hardship on the more deserving of the litigants.... A court has failed in granting justice when it forces a party to an expensive trial of several weeks' duration to meet purely formal allegations without substance fully as much as when it improperly refuses to hear a case at all. (1) An oft-told story takes off from there with either a grim or grinning citation to the Supreme Court's 1986 trilogy. (2) In one telling of this story, the Court paved paradise and put up a parking lot of pretrial disposition that unfairly and unreasonably burdens plaintiffs (3)--perhaps even violating the right to a civil jury trial guaranteed by the Seventh Amendment. (4)

As litigation has more than one side, there is, of course, an opposing view--namely that invigorated summary judgment practice simply and efficiently substitutes an early dispositive motion for the substantial and pointless costs of going through the trial motions in a meritless suit. (5) But even this positive position concerning efficiency has been contested. As Samuel Issacharoff and George Loewenstein have suggested, liberalized summary judgment practice might affect the parties' returns from settlement in cases that otherwise would settle early in the litigation process. (6) If liberalized summary judgment eliminates enough early settlements, then it might actually increase the net costs of administering the federal civil justice system: even if fewer cases get past summary judgment, perhaps more cases get to summary judgment. One scholar has even asserted that, as a practical matter, the costs of civil litigation would fall if we abolished summary judgment altogether. (7)

For much of the two decades or so following the 1986 trilogy, a powerful narrative held that these decisions importantly affected not only summary judgment doctrine but also the facts on the ground in litigation. The narrative of sudden change sparked by the 1986 trilogy has commanded support from some noted scholars over the years, (8) perhaps reinforced by normative concerns regarding constitutionality, fairness, and access to justice. The flame of these normative concerns was only fanned by the Supreme Court's much more recent--and hardly less controversial--intervention into pleading doctrine in Bell Atlantic Corp. v. Twombly (9) and Ashcroft v. Iqbal. (10) No doubt the oft-repeated, positive view that the trilogy loosed the hounds of pretrial disposition fits snugly into the dim-view normative Zeitgeist that has sunk roots following Twombly and Iqbal. (11)

But this is not the only story about the development of summary judgment practice over the last several decades. Roughly a decade ago, after considering the then-existing empirical literature, as well as his own examination of docket information from the Eastern District of Pennsylvania, Stephen Burbank wrote that "[s]uch reliable empirical evidence as we have, however, does not support the claims of those who see a turning point in the Supreme Court's 1986 trilogy. Rather, that evidence suggests that summary judgment started to assume a greater role in the 1970s." (12)

Joe Cecil of the Federal Judicial Center (FJC) later led a team of authors to analyze data on summary judgment activity for six time periods in six U.S. district courts. (13) Cecil's team, echoing Burbank's conclusion, found 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." (14) They went on to suggest that the increased disposition of cases on summary judgment motions might simply be attributable to an increase in the relative number of civil rights cases, for which summary judgment--in terms of both the number of motions and the number of dispositions--had always been more prevalent. (15)

On the trilogy's twenty-fifth anniversary, Linda Mullenix revisited the work of Cecil and his coauthors, concluding that "[a]rguably, the summary judgment trilogy had its greatest impact on the way in which first-year civil procedure professors teach summary judgment." (16) Mullenix conducted her own empirical study of 222 published and unpublished Circuit Court of Appeals decisions from 2010 in which the appellate court was reviewing district court summary judgment decisions. (17) She found, in brief, that courts often did not cite Celotex. (18) Moreover, "[i]f this were not shocking enough, in the remaining universe of decisions where courts do cite Celotex, some federal judges do not seem to acknowledge, understand, or apply the elaborate Celotex conceptual framework." (19) Finally, Mullenix found that, even after Celotex, many federal judges continued to use "a kind-of gestalt 'tennis match' mode of analysis" to decide summary judgment motions. (20) Combining her findings regarding Celotex with evidence that neither Anderson nor Matsushita had much impact, Mullenix concluded that the trilogy may in fact have been "much ado about very little" and that attorneys "need not overly fret over" the details of summary judgment motion practice. (21)

Doctrinal issues related to summary judgment surely need no further development in the wake of the flood of scholarship following the trilogy. (22) Nor is there any sense in presenting yet more evidence concerning how trends in summary judgment disposition relate to the trilogy. As to this aspect of empirical work related to summary judgment, I agree heartily with Mullenix's position that "[t]he FJC has preempted and occupied the entire field of empirical study of summary judgment in the post-Celotex era." (23)

Instead, this Article will pursue two distinct objectives. In Part I, I consider the empirical implications of perceived changes in judges' adjudicatory practices at summary judgment. I suggest that empirical evidence concerning summary judgment disposition should be considered in the light cast by behavioral models of party behavior that take seriously the fact that litigation involves live parties--who, together with their attorneys, make deliberate, strategic decisions--rather than inanimate particles bouncing around and filing motions exogenously. To give this sort of life to both parties, one must reject the notion that cases will always be litigated in one way or another, regardless of the legal rules and judicial environment that litigants face. Since I doubt that anyone holds such a Calvinist view of litigation behavior, my discussion in Part I is best viewed as indicating the methodological implications of accepting at least some role of free will in litigation. As it turns out, litigants' ability to carefully consider how to respond to changes in summary judgment standards (24)--for example, by choosing to file motions they would not have filed under an earlier summary judgment standard or to relax settlement demands under their opponents' threat to move for summary judgment--has important implications for the interpretation of empirical evidence concerning changes in summary judgment disposition over time, including the evidence already discussed.

In Part II, I discuss some of the empirical implications of Part I's analytical machinery, concentrating on what this equipment might suggest about the relationship between judge characteristics and observed summary judgment motion-filing behavior, given that parties might settle before either moves for summary judgment.

In Part III, I present empirical results that relate the filing of summary judgment motions directly to judge characteristics. (25) All cases in my data set were filed in the 2005 calendar year, which, of course, long postdates the trilogy. But the characteristics of the district court judges to whom cases are assigned differ substantially, and various arguments in the literature suggest the possibility that certain judge characteristics--namely, sex, race, ethnicity, and appointing President--should make some judges more favorable to defendants than other judges.

Because defendants file the vast majority of summary judgment motions in civil rights and torts cases, (26) it is possible to test the notion that plaintiffs do not respond to summary judgment standards by determining whether cases assigned to judges with more defendant-favorable characteristics are more likely to have summary judgment motions filed. I find significant evidence that judge...