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.

Americanization of the Common Law

Last week, J.L. Bell at Boston1775 said that he had not read William E. Nelson's Americanization of the Common Law: The Impact of Change on Massachusetts Society, 1760-1830 because he expected that, since he was not a lawyer, he would not have the necessary background. This has been gnawing at me. Professor Nelson's book offers some brilliant insights, and it is a shame if historians are avoiding it.

It may be a historian with no legal training would not understand parts of the book, or rather find portions of insufficient interest to be worth the investment of time and effort necessary to master them. Nonetheless, I think the book is worth reading, even if you skim portions.

Let me describe briefly one way in which Americanization really deepened my understanding of colonial political culture. The Massachusetts legal system was built almost entirely on juries. No one could be criminally convicted, or held civilly liable, unless a jury said so. This contributed to the fact that British rule over Massachusetts was singularly weak. Britain could pass whatever laws it wanted, but they could be enforced only through Massachusetts juries. This gave rise to the possibility of "jury nullification", the phenomenon of juries refusing to convict or find civil liability because they refuse to follow the law.

We have jury nullification occasionally. Think of the OJ case, where the jurors refused to convict OJ despite overwhelming evidence of his guilt. However, today jury nullification is rather rare, because we have built into the legal system a number of procedures that are designed to minimize it. Among other things (and in no particular order): the judge presiding at a trial instructs the jurors, usually in great detail, as to what the law is and tells them they must follow it; lawyers are not permitted to tell jurors what the law is or that it is different from what the judge says it, nor can lawyers argue to juries that they can or should not convict even if the judge's instructions suggest that they should (that is, lawyers may not tell or suggest to juries that they have the power of jury nullification). There are also various procedural devices that take away cases from juries where the facts are clear (such as summary judgment) or where juries have ignored the evidence (motions for new trials or judgment notwithstanding the verdict).

Eighteenth Century Massachusetts, on the other hand, had a legal system that had jury nullification built into its core. Trials were presided over by multiple judges, who often gave conflicting legal instructions, or instructions that were so vague and general as to be virtually meaningless. Lawyers routinely argued the law as well as the facts -- that it, they were in effect free to tell jurors that the jurors had absolute discretion to decide that someone was not guilty or not liable. There was virtually no way to avoid a jury trial or overturn a jury verdict after it was rendered.

In other words, the law on a day-to-day basis was whatever local juries said it was. This in turn meant that British rule was extraordinarily weak. If a law was unpopular, as a practical matter it would not be enforced. Conversely, the discretion of juries reinforced community pressure and customary, local rules of conduct.

Professor Nelson's book is filled with such revelations. For someone steeped in colonial and early 19th Century American history, I heartily recommend it. Again, you may wind up skimming some portions, but I think you'll still find it valuable.