The Unconstitutionality of Summary Judgment: A Status Report

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

Summary judgment is unconstitutional. This Symposium Article summarizes this thesis, which was first set forth in Why Summary Judgment Is Unconstitutional, published by the Virginia Law Review. This Article also describes the attention that the thesis has begun to receive in the federal courts and in the media.

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 the Iowa Law Review editors, especially John Fox, for putting on this Symposium and for their work on my Articles.

Summary judgment is unconstitutional. I have argued this thesis since February 2006, when I first posted my article Why Summary Judgment Is Unconstitutional1 on the Social Sciences Research Network ("SSRN"). Here, I will briefly explain what I argued in that article and then tell what has happened since February 2006.

Before I explain my thesis, let me start with the status of summary judgment before February 2006. Before February 2006, federal courts used summary judgment to dismiss many cases, most prominently employment discrimination and other civil rights cases.2 Before February 2006, summary judgment was constitutional in almost everyone's eyes. It was obvious. This procedure had been around for a long time and was an effective manner to dismiss a non-meritorious case. Besides that, it had to be constitutional. The procedure was necessary to the proper functioning of the federal courts. The system would break down without summary judgment. Academics like Professors Kozel and Rosenberg had even argued for the mandatory use of summary judgment.3 Other academics, on the other hand, argued that judges overused summary judgment in certain types of cases, including employment discrimination cases.4

Prior to February 2006, the constitutional basis for summary judgment was in fact shaky, but this had not been fully realized. The Court and scholars cited Fidelity & Deposit Co. v. United States5 for the constitutionality of summary judgment even though the rule in Fidelity was comparable only to the motion to dismiss.6 Moreover, some well-known academics, including Arthur Miller and coauthors Marty Redish and Ed Brunet, had acknowledged, albeit briefly, possible Seventh Amendment problems with summary judgment.7

In February 2006, I presented the argument that summary judgment is unconstitutional.8 Under summary judgment, a court decides that "'no genuine issue as to any material fact'" exists.9 This has been interpreted to mean that no reasonable jury could find for the nonmoving party.10 My argument that summary judgment is unconstitutional is based on the Seventh Amendment right to a jury trial.11 As a preliminary matter, the Supreme Court has held that the Seventh Amendment applies only to federal courts.12 Many states have constitutionalized significant jury trial rights and thus my argument that summary judgment is unconstitutional may apply to those states dependent upon the text of their constitutions. Here, though, I speak only of the federal right to a jury trial and the constitutionality of summary judgment in the federal courts.

The Seventh Amendment provides 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."13 One of the least known facts about the Constitution is that the Seventh Amendment is the only part of the Constitution that explicitly includes the words "common law."14 The significance of this fact is that this usage in the Seventh Amendment requires the common law to govern the right to a civil jury trial. There is often talk of what role originalism should play in the interpretation of the Constitution.15 Originalism is defined as the original intent of the Founders or, more recently, defined as original public meaning.16 The Supreme Court has used originalism to inform the interpretation of various parts of the Constitution, using the English common law at the time of the founding.17The Seventh Amendment, however, is the only part of the Constitution that explicitly, through the text, requires this application of originalism.18Indeed, the Supreme Court has said that "common law" in the Seventh Amendment means the English common law in 1791 when the Seventh Amendment was adopted.19 While the Court has stated that "'[t]he common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions,'" the Court has also stated that "'here, we are dealing with a constitutional provision which has in effect adopted the rules of the common law, in respect of trial by jury, as these rules existed in 1791.'"20The Court has also stated that "'[t]o effectuate any change in these rules is not to deal with the common law, qua common law, but to alter the Constitution.'"21

Accordingly, the Court has interpreted the first clause of the Amendment, which states that "[i]n Suits at common law, . . . the right of trial by jury shall be preserved," to mean that there is a jury trial right today in cases with legal rights and remedies, just as there was a jury trial under the common law for all cases with legal remedies.22 This contrasts with cases with equitable remedies and admiralty cases under which there was no jury trial under the common law.23 The Court has also emphasized that the substance of the common law, not the form, should be satisfied.24 In Curtis v. Loether the Court stated that there was a jury trial right for housing discrimination, a congressionally created cause of action that gave a right to damages.25 This was so because it was a tort-like right and remedy tried to juries in England at the time that the Seventh Amendment was adopted.26

The Court has interpreted the second clause of the Amendment, which states that "no fact tried by a jury, shall be otherwise re-examined by any Court of the United States, than according to the rules of the common law,"27 to require that where a jury trial right exists, any new procedure which permits the re-examination of facts must comport with the substance of the English common law...

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