Summary judgment and the vanishing trial: implications of the litigation matrix.

• Author: Redish, Martin H.
• Position: The Civil Trial: Adaptation and Alternatives

INTRODUCTION I. SUMMARY JUDGMENT, THE VANISHING TRIAL, AND THE THREE LEVELS OF EMPIRICAL ANALYSIS II. THE LITIGATION MATRIX III. APPLYING THE LITIGATION MATRIX TO THE LAW OF SUMMARY JUDGMENT A. The Litigation Matrix and the Role of Summary Judgment B. The Litigation Matrix and the 1986 Trilogy 1. Celotex Corp. v. Catrett: "External'" burdens on summary judgment movants 2. Matsushita Electric Industrial Co. v. Zenith Radio Corp.: "Internal" summary judgment burdens and the scope of "slightest doubt". IV. MANAGERIAL JUDGING, SUMMARY JUDGMENT, AND THE RULEMAKING PROCESS CONCLUSION INTRODUCTION

There can be little question that, at least in the federal courts, trials are vanishing. The statistics make this conclusion inescapable. (1) Far more troublesome, however, are two key, as yet unresolved issues that are triggered by this seemingly indisputable empirical insight: (1) why has this development taken place, and (2) is this development good or bad for the litigation system? While the empirical conclusion seems relatively uncontroversial, the causal and normative issues to which it gives rise are considerably more difficult to resolve. The purpose of this Article is to suggest answers to both of these "second level" questions.

As to the first question, my answer is relatively simple. Changes in the law of summary judgment quite probably explain at least a large part of the dramatic reduction in federal trials. (2) To be sure, this is likely far too simplistic an answer to so complex an inquiry. There are probably a number of other contributing factors, including increased pressures to settle due to changing economic considerations and the availability and use of alternative dispute resolution mechanisms like arbitration and mediation. But developments in the law of summary judgment that correspond temporally to the dramatic decline in federal trials strongly suggest a causal connection. (3) After all, the entire purpose of summary judgment, broadly stated, is to provide a pretrial check on what a court deems to be an unnecessary trial. (4) It is reasonable to assume that the more available summary judgment becomes and the more vigorously it is enforced, the fewer trials will take place. In the so-called "trilogy of 1986," the Supreme Court simultaneously increased the procedure's availability and more aggressively enforced the procedure as a limit on the availability of trials. (5) It should therefore not be particularly surprising that the number of trials in federal court has dropped precipitously since the mid-1980s. (6)

More complicated is the second question: whether the invigoration of summary judgment procedure and the corresponding diminution in the number of trials in federal court should be deemed positive developments. To answer that question, it is advisable to focus upon the intersecting network of normative first principles that underlie our litigation system--what in previous writing I described as the "litigation matrix." (7) It is only by undertaking this foundational normative inquiry, I believe, that one is able to judge either the first-level empirical claim that the number of trials has gone down or the second-level theoretical claim that the invigoration of summary judgment has caused the number of trials to go down.

Application of the litigation matrix to summary judgment's restrictive impact on trials gives rise to a series of complex conclusions that seem inconsistent at first. On the one hand, the matrix tells us that the invigoration of summary judgment makes perfect sense in what I describe as "external" contexts--the procedural restraints on a trial court's ability to reach the merits of a summary judgment motion. I argue that in its 1986 trilogy, the Supreme Court failed to go nearly far enough in limiting these external restraints. (8) On the other hand, the litigation matrix dictates a far less aggressive approach to fashioning the scope of the "internal" aspects of the summary judgment procedure, by which I mean the standard for decision that a trial court employs once it finally reaches the merits of the summary judgment question. It is my position that at the point in the process when "internal" issues are reached, the matrix's concern with individual dignity and political legitimacy, deriving from foundational premises of liberal democracy, dictates an appropriate degree of judicial restraint in keeping cases from a jury. (9) When the dust settles, then, I simultaneously urge a substantial expansion of the courts' ability to reach the merits of summary judgment and a far more tempered approach to the actual summary judgment decision.

In the first Part, I briefly describe the empirical evidence demonstrating the dramatic decrease in federal trials, and the corresponding increase in the availability of summary judgment awards that has been brought about by the Supreme Court's 1986 summary judgment trilogy. In the Part that follows, in order to lay the groundwork for my normative analysis of these empirical results, I explain the contours of the litigation matrix. I believe the litigation matrix provides the appropriate normative framework by which the modern procedural system should be measured. In Part III, I describe the manner in which the Supreme Court's 1986 trilogy dramatically impacted that measuring process. In Part IV, the Article seeks to apply the precepts of the litigation matrix to the post-1986 summary judgment framework and explores how modern procedural doctrine should be shaped best to reflect those precepts. Utilizing this analysis, I critique the scholarly argument that trial courts should be vested with virtually unfettered discretion in declining to award summary judgment, regardless of the strength of the nonmovant's evidence. Finally, in Part V, the Article urges revisions in the text of the rule governing summary judgment in federal courts, Rule 56 of the Federal Rules of Civil Procedure, to reduce both its current ambiguity and the scope of judicial interpretive discretion.

1. SUMMARY JUDGMENT, THE VANISHING TRIAL, AND THE THREE LEVELS OF EMPIRICAL ANALYSIS

   At the outset, I should make clear that I am not now, nor have I ever purported to be, a trained empiricist. However, I believe that even the untrained eye is able to recognize three analytical levels on which empirical results may be examined. First, on the most basic level, one may glean from empirical analysis a description of what has happened or is currently happening in the real world. On what can be described as the second level of empirical analysis, one can ask why these results have occurred: what event or action, or series of events or actions, has brought about the current state of reality? Although this causal inquiry is likely to be somewhat more difficult to undertake than the first-level inquiry, comparison of correlated empirical inquiries or longitudinal studies may provide insights about such causal connections. Finally, the most abstract level of inquiry (the third-level analysis) examines the empiricists' conclusions, both first- and second-level, from a purely normative perspective. On this third analytical level, the analyst asks whether those empirical results are "good," from whatever perspective the normative theorist chooses to employ--for example, from the perspectives of morality or economic efficiency. Debate on this third analytical level, of course, may often prove to be endless (thereby keeping scholars gainfully employed). Nevertheless, the normative inquiry is inevitably shaped and informed, and therefore benefited, by the descriptive factual insights of the empiricists.

   Study of the connection between summary judgment and the vanishing trial benefits significantly from recognition of these three distinct yet related levels of analytical inquiry. On the first level of analysis, today's reality appears reasonably clear. While it might be hyperbolic to suggest that federal trials have actually "vanished," such poetic license may be appropriate in light of the relevant empirical evidence. "On almost any measure," Marc Galanter has written, "law has flourished and grown. It seems curious, then, to find a contrary pattern in one central legal phenomenon, indeed one that lies at the very heart of our image of our system--trials." (10) According to Galanter, "[t]he number of trials has not increased in proportion to ... other measures. In some, perhaps most, forums, the absolute number of trials has undergone a sharp decline." (11) Other empirical scholars have concurred in this conclusion. (12) Thus, it is difficult to dispute that "[t]he decline in the rate of civil trials in the post-World War II federal courts continues and accentuates a long historic trend away from trial as the mode of disposing of civil cases." (13)

   That the number of trials has decreased, at least proportionally and probably absolutely, does not explain either why that has taken place or whether it is information to be celebrated, rather than decried. As to the causal question, one may hypothesize a variety of potential explanations for the dramatic post-World War II decline in the number of trials, none of which appears to be mutually exclusive of the others. Certainly the increase in class action litigation and the modern expansion of products liability law have substantially increased the economic stakes for defendant corporations. In these so-called bet-the-company cases, once a class has been certified many defendants do not believe they can take the chance of a trial, and thus feel heavy pressure to settle. (14) Additionally, the entire area of alternative dispute resolution has blossomed in the modern litigation era. By means of arbitration, mediation, or litigation screening devices, parties have chosen--or, on occasion, been legally or practically coerced--to avoid the trial process. (15)

   Whatever influence these factors have actually had in the reduction in the number of...