Why Summary Judgment Is Still Unconstitutional: A Reply to Professors Brunet and Nelson

Author:Suja A. Thomas
Position::Visiting Professor, Vanderbilt University Law School

As I have stated, summary judgment is unconstitutional. Professors Edward Brunet's and William Nelson's Symposium responses to my article Why Summary Judgment Is Unconstitutional, previously published in the Virginia Law Review, confirm that summary judgment is unconstitutional. No procedure analogous to summary judgment existed under the English common law in 1791, the common law that governs... (see full summary)

Visiting Professor, Vanderbilt University Law School; Professor, University of Illinois College of Law (as of fall 2008). J.D., New York University School of Law; B.A., Northwestern University. Thanks to Jake Nelson, a student at Vanderbilt Law School, for providing excellent research assistance. I am also grateful for discussions with and/or the comments of the following: Louis Bilionis, Lisa Bressman, James Ely, Brian Fitzpatrick, James Oldham, and Tod Thompson. Finally, thanks to the participants at a faculty workshop of this piece at the Benjamin N. Cardozo School of Law.


As I have stated, summary judgment is unconstitutional. Professors Brunet's1 and Nelson's2 responses to my article Why Summary Judgment Is Unconstitutional3 confirm my finding that summary judgment is unconstitutional. Here I address their responses and offer where I think this discussion should go.

In my article, I followed the approach adopted by the Supreme Court for the assessment of the constitutionality of a modern procedure that affects the jury trial right under the Seventh Amendment.4 A modern procedure is constitutional if the substance of the English common law jury trial in 1791 is satisfied.5 In other words, the constitutionality test is flexible, not requiring rigid adherence to the particular procedures in effect in 1791, while requiring that the substance of the common law jury trial be preserved.6 Accordingly, in my article, I examined the English common law procedures that affected the jury trial right, including the demurrer to the pleadings, the demurrer to the evidence, the nonsuit, the special case, and the new trial.7 In addition to showing that each of those procedures contrasted with summary judgment, I also derived the substance or core principles of those common law procedures and demonstrated that summary judgment did not satisfy the substance or core principles of the common law.8

Both Professors Brunet and Nelson agree that the common law in 1791 governs the analysis of the constitutionality of summary judgment.9Professor Nelson also agrees with me that "a modern judge who is committed to interpreting the Seventh Amendment as its drafters and ratifiers would have applied it should deem summary judgment and the Twombly motion to dismiss unconstitutional."10 Professor Nelson himself has shown that juries in Massachusetts in the Revolutionary Era decided law and fact and that juries in several other states also decided both law and fact.11 Moreover, juries had much power under the common law in England.12Despite this research, Professor Nelson seems to argue that the Seventh Amendment is irrelevant today.13 In Professor Nelson's view, at most, the Seventh Amendment should evolve to meet modern-day needs, and summary judgment must be constitutional by this necessity.14

Professor Brunet attempts to show that, in my analysis of the common law, I (and now presumably also Professor Nelson) have missed the relevance of something that existed under the common law-an English non-jury trial referred to as the trial by inspection or trial by examination. He argues that this trial has similarity to summary judgment such that summary judgment is constitutional.15 When the trial by inspection is described, one sees quickly, however, that if there is any modern analogy to trial by inspection, the obvious analogy would be judicial notice, a procedure that we all well know is not comparable to summary judgment. Professor Brunet also argues that the demurrer to the evidence has similarity to summary judgment such that summary judgment is constitutional.16 In his discussion of the demurrer to the evidence, he fails to address my treatment of the demurrer to the evidence in Why Summary Judgment Is Unconstitutional, including my discussion of the definitive eighteenth century case on the demurrer to the evidence, Gibson v. Hunter. In that case, the House of Lords stated that the demurrer to the evidence was rare because the demurring party accepted as true all of the other party's evidence, including that which was implausible, and the court decided whether a claim existed under those implausible and plausible facts.17 This is not summary judgment. Under summary judgment, a court instead looks at both parties' evidence and decides whether a reasonable jury could find for the nonmoving party, examining only inferences that a judge deems reasonable.18 Finally, Professor Brunet attempts to show that the goals of the English courts included efficiency and competition and as a result it follows that summary judgment is constitutional.19 Professor Brunet's basis for these general propositions ignores the substance of the common law jury trial, which sharply conflicts with modern summary judgment.20 Instead, the substance of the common law jury trial demonstrates that any such efficiency and competition at the time of the founding did not compromise on jury power.21

Indeed, the jury is a separate constitutional actor, the importance of which the Founders recognized by the adoption of the Seventh Amendment in 1791. The Seventh Amendment explicitly limited the cases that the judiciary could hear and the manner in which the judiciary could be involved in the cases preserved for juries. A flexible common law, the law which Professors Brunet, Nelson, and I agree governs the jury trial right embodied in the Seventh Amendment, must preserve the jury trial right, not permit the judiciary or other constitutional actors to eliminate the power of the jury, a constitutional actor that cannot preserve its own power.

I. Summary Judgment Is Unconstitutional

In my initial contribution to this Symposium, The Unconstitutionality of Summary Judgment: A Status Report,22 and in Why Summary Judgment Is Unconstitutional,23 I have extensively discussed my argument that summary judgment is unconstitutional. In brief, the text of the Seventh Amendment states that "[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."24 I argued that summary judgment is unconstitutional for two reasons. There was no procedure analogous to summary judgment.25 In addition, the substance of the common law jury trial procedures contrasts with summary judgment.

First . . . under the common law, the jury or the parties determined the facts. One party could admit the allegations or the conclusions of the evidence of the other party, or the parties could leave the determination of the facts to the jury. A court itself never decided the case without a determination of the facts by the parties or the jury, however improbable the evidence might be. Second, only after the parties presented evidence at trial and only after a jury rendered a verdict, would a court ever determine whether the evidence was sufficient to support a jury verdict. Where the court decided that the evidence was insufficient to support the verdict, the court would order a new trial. Another jury would determine the facts and decide which party won. The court itself would never determine who should win if it believed the evidence was insufficient. Third, a jury would decide a case with any evidence, however improbable the evidence was, unless the moving party admitted the facts and conclusions of the nonmoving party, including the improbable facts and conclusions.26

Summary judgment contrasts with the substance of the common law because under summary judgment, contrary to the common law, a court examines the evidence of both parties and decides whether a reasonable jury could find for the nonmoving party.27 Under the common law, to avoid a jury trial, a party was required to accept the allegations or conclusions of the opposing party's evidence, including the implausible allegations or conclusions, and the court must find no claim under those allegations or conclusions.28 A court could decide the sufficiency of the evidence, considering both parties' evidence, only after a jury trial, and even then if the court decided that the evidence was insufficient, the court could order only a new trial, not judgment.29

II. Reply To Professor Brunet

First, I address Professor Brunet's response to my argument that summary judgment is unconstitutional. Professor Brunet begins with the admission that "the common law lacked a transsubstantive procedure exactly like summary judgment."30 After this admission, Professor Brunet attempts to transform the trial by inspection into such a transsubstantive rule of the common law.31 To allow him to do this would be to ignore the English common law, which, indeed, as I have stated-and as noted legal historians Professors Nelson and Oldham acknowledge-finds no analogy to summary judgment.32

I applaud Professor Brunet, a noted scholar on the civil procedure aspects of summary judgment,33 for entering this important discussion on the constitutionality of summary judgment. Over the past several years, I have studied the English common law procedures that affected the jury trial in 1791.34 It is a worthwhile endeavor to research these issues. However, Professor Brunet misreads the history.

So let's take a look at the "trial by inspection," which Professor Brunet argues "bears a remarkably close resemblance to summary judgment . . . [which] justifies the conclusion that a summary-judgment procedure existed historically in or around 1791."35 "Trial by inspection," as indicated by its name, was one of seven types of "trial" in civil cases.36 The "trial by jury" was another.37 In other words, some cases did not go to jury trials, and trial by inspection was a type of trial by which there was no jury.38

With this distinction between trial by inspection and trial by jury understood, under the trial by inspection, judges would "upon the testimony of their own senses" through "ocular demonstration or other irrefragable proof"...

To continue reading