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Summary Judgement Unconstitutional?
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.