Academic

Iowa Symposium on the Constitutionality of Summary Judgment

By Lawrence Solum

Almost everyone who is interested in civil procedure knows that Suja Thomas's work on the constitutionality of summary judgment has created an enormous stir on the bench and bar and in the ivory tower.  The papers from a recent University of Iowa symposium on Thomas's work are now available.

The Unconstitutionality of Summary Judgment: A Status Report by Suja Thomas

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 media.

Summary Judgment and the Progressive Constitution by William E. Nelson

This symposium article is a response to Professor Suja Thomas's article Why Summary Judgment Is Unconstitutional, in large part agreeing with her historical findings but arguing that the Constitution must not be mired to the past but must capable of change to facilitate progress.

Summary Judgment is Constitutional by Edward Brunet

This article demonstrates that summary judgment is constitutional and does not violate the Seventh Amendment. Two historical antecedents, used by common-law courts, justify modern summary judgment, trial by inspection and demurrer to the evidence. Trial by inspection, as explained by Blackstone, Coke, and Maitland, allowed a common-law judge to inspect evidence visually and then decide "obvious" cases without ever impaneling a jury. In contrast, a jury would be used if pretrial inspection demonstrated legitimate "doubt" about the relevant issue. Demurrer to the evidence, while not identical to summary judgment, is similar because it allowed a judge to take a case away from a jury where the nonmovant's evidence failed to prove a claim or defense. The article criticizes a rigid interpretation of the right to jury trial and, in its place, contends that courts should use a more pragmatic, modern construction of the Seventh Amendment. This pragmatic interpretation of the right to jury trial, which has been used by Justices Rehnquist, Brennan, Rutledge, Stone and McKenna, is consistent with the flexibility of the English common-law. English courts were constantly competing for business and continually changed procedures in an effort to compete effectively. It is this utilitarian and pragmatic common-law history that justifies use of a more pragmatic and flexible construction of the Seventh Amendment.

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

As I have stated, summary judgment is unconstitutional. Professors Edward Brunet and William Nelson's responses to my article Why Summary Judgment Is Unconstitutional 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 the constitutionality of modern procedures that affect the civil jury trial right. Misreading and ignoring the governing common law, Professor Brunet offers a different type of trial under the common law, a non-jury trial - the trial by inspection - as the common law analogy to summary judgment. A look at this trial shows that, if analogous to anything in modern litigation, this trial has similarity to judicial notice, a far cry from summary judgment. Professor Brunet also incorrectly attempts to compare summary judgment to the common law demurrer to the evidence, again ignoring the governing case law. Noted legal historian William Nelson agrees with my analysis that no common law analogy to summary judgment exists. Professor Nelson, however, rejects the Supreme Court's own test that the English common law governs the constitutionality of modern procedures that affect the jury trial right. I conclude that the substance of common law should continue to govern the constitutionality question. The constitution explicitly imposes this common law check on the power of the judiciary over the power of the jury. Under the substance of this governing common law, summary judgment is unconstitutional.

And a podcase is also available: follow this link.

If you are interested in summary judgment or the Seventh Amendment, these papers are essential reading.  Highly recommended.

Full post as published by Legal Theory Blog on April 08, 2008 (boomark / email).