Is Summary Judgment Is Unconstitutional?

This looks like a great article:

Why Summary Judgment is Unconstitutional
by Suja A. Thomas
93 Va. L. Rev. 0 (2007)

Summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (e.g., civil rights), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Company v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Article is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that [i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. The Supreme Court has held that common law in the Seventh Amendment refers to the English common law in 1791. This Article demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles of the English common law. The Article concludes that despite the perceived necessity and uniform acceptance of the device, summary judgment is unconstitutional. The Article also responds to likely objections and explores the far-ranging ramifications of this conclusion.

My only familiarity with the historical backdrop is via William E. Nelson's wonderful book The Americanization of the Common Law. I have mentioned the book before. That book does indeed indicate that, in Massachusetts at least, circa 1791 every case went to a jury -- indeed, there was little differentiation between law and facts; as a practical matter, the jury decided both.

But that does not mean I'm convinced that summary judgment is unconstitutional. The core assumption underlying summary judgment is that there are no facts in dispute. Off the top of my head, even assuming the founders did not foresee the summary judgment device -- and I assume they did not -- it is hard to see how a judge is "reexamining" a "fact" by granting summary judgment. That said, I am eager to read the article to understand the argument.

A final observation or two. Never, never, never, whatever the merits, will a Court of Appeals or the Supremes hold summary judgment unconstitutional. Again, I'm eager to read the article, but if I'm sure of anything it's that elimination of summary judgment would be both grossly unfair to litigants and a disaster for the system and the judges who administer it. I've been involved in commercial litigation for over twenty-five years, and it would be a travesty if there were no way to dispose of meritless cases before trial.

Hat tip to Prawfsblawg for pointing out the article.