I spend most of my working time preparing or responding to motions for summary judgment so a law journal article that suggests that summary judgment is unconstitutional grabbed my attention. In Why Summary Judgment is Unconstitional, Professor Suja A. Thomas begins with the proposition that, under the Seventh Amendment, any new procedure that deprives a party of a jury trial must “satisfy the substance of the English common law jury in 1791.�
Professor Thomas describes various common law procedures that involved taking a case from the jury and concludes that summary judgment does not pass muster. In general, the common law procedures apparently required the moving party to admit the evidence of the nonmoving party. In contrast, under summary judgment procedures, a judge determines whether evidence is sufficient and considers only reasonable evidence or inferences, thereby excluding unreasonable evidence or inferences.
I found Professor Thomas’ article to be an interesting read and it seems to be thoroughly researched. I know that I would not want to read enough English common law cases to determine what the applicable procedures were in 1791. Will the Supreme Court set aside Rule 56 based on these arguments? I doubt it. Can lawyers in the trenches use Professor Thomas’ arguments in their summary judgment disputes? I think so.
How can you use this?
Professor Thomas emphasizes the limited role or authority of the common law court in taking a case from a jury so her research may be helpful. For example, you are defending a motion for summary judgment and are relying on inferences or evidence that a court may be inclined to disregard as unreasonable. In your response, you could turn to Professor Thomas’ article for some citations that tie the present-day court’s authority to the limited authority of the common law court. In other words, you could argue that Rule 56 summary judgment should be limited or at least tempered by the parameters of common law procedures in 1791. Even then, however, don't spend more than a sentence or two on this argument.

We lawyers spend a lot of time making sure that our pleadings satisfy all of the rules and protect our clients' interests from every direction. Sometimes it takes a pro se party, however, to cut to the chase and say what we all wish we could say.
One of my favorites is Wheat v. Eakin, 491 So.2d 523 (Miss. 1986).
In that case, the defendant filed a handwritten document with the clerk’s office after he was served with the complaint. The clerk entered a default and the court granted default judgment on the ground that the plaintiff failed to plead or otherwise defend the action. The Mississippi Supreme Court reversed, holding that the clerk should not have entered the default because the plaintiff’s handwritten filing at least made an indicia of defense or denial of the allegations in the complaint.
What did the handwritten note say? The Court acknowledged that “the form and language of the appellant's response are less than desirable and more frank than customary,� but was nonetheless sufficient. Apparently for that reason, the Court attached the handwritten filing as an exhibit. Here it is:

Not only do I deny all of the allegations in the above styled suit, I contend, with all due respect, that the plaintiff must be suffering from a condition of brown eyeballs since he is full of so much bullshit.
Respectfully yours, John Wheat

Susan McDonald
Post Office Box 150833 Nashville, TN 37215
(615) 297-1599 lawyermcdonald@gmail.com