Judicial Sodomy: Why summary judgment is unconstitutional



Prof. Suja Thomas knows how to start a story with a riveting lead:

Gavel_flickr_383476178_8fe0f5e767Summary judgment is unconstitutional.

Say what?

That’s the first sentence of her article, “Why Summary Judgment Is Unconstitutional,” about to be published in the Virginia Law Review and available for download at SSRN.  She knows you’ll be skeptical:

I understand that this assertion will face resistance from many. The procedure is well-entrenched in our federal courts through its ubiquity and lengthy history. Nevertheless, I will show that summary judgment fails to preserve a civil litigant’s right to a jury trial under the Seventh Amendment.

Summary judgment means no jury

I have a few intrepid readers whose work has nothing to do with law, and a few more who haven’t thought about civil procedure since law school, so let’s be sure we’re on the same page.  Summary judgment means you skip the jury and decide a civil lawsuit “on the papers.”  If the judge rules that the undisputed facts lead to only one legal conclusion, the case is over — without a jury trial.  A common example is an explicit contract.  If I lend you money, you sign a promissory note, and you don’t pay, the judge will usually tell me I win the case “as a matter of law,” since there is nothing a jury could say that would take you off the hook.

To a business litigator like me, rethinking summary judgment is like rethinking breathing.  We have never considered what we would do without it.  As Prof. Thomas notes, summary judgment is a a fixture of civil practice:

A large number of civil cases do not move beyond discovery without at least one motion for summary judgment from the defendant.  . . .  Indeed, the extensive use of summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in the federal courts.

But unconstitutional?

I always thought the Supreme Court liked summary judgment, too.  In our motions, civil lawyers always cite Celotex Corp. v. Catrett, 477 U.S. 317, which in 1986 formed part of a well-known trilogy of Supreme Court opinions addressing summary judgment:

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed “to secure the just, speedy and inexpensive determination of every action.”  . . . [The summary judgment rule] must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

(Emphasis added, as we always do.)  Prof. Thomas points out there is actually data showing how much we love this quote; she cites Adam N. Steinman, The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy, 63 Wash. & Lee L. Rev. 81, 82, 86–88, 143–44 (2006) (SSRN download here) as “presenting data that demonstrates that federal courts cite the trilogy of cases on summary judgment more often than any other cases.”

Prof. Thomas reviews the Supreme Court’s summary judgment cases and argues that the court has never specifically decided whether summary judgment denies the constitutional right to jury trial.  Since the question is unresolved, she argues, we should now resolve it, and eliminate summary judgment.  She argues here — as she did in an earlier article, “Judicial Modesty And The Jury,” SSRN download here — that summary judgment shifts the balance of power from juries, where she thinks it should be, to judges, where she thinks it shouldn’t.

Practical questions

There are going to be questions, of course.  Some are practical.  Prof. Thomas draws a line, for example, between constitutionally acceptable motions to dismiss, where the facts are fixed because the complaint is taken as true, and unconstitutional motions for summary judgment, where the judge decides what a jury could reasonably infer from agreed facts.  In practice, the distinction is not so clean.  If I’m suing on a promissory note and the defendant files a mushy denial, the motion I need to file is for summary judgment, even though the facts and all inferences from them are fixed.

Then there’s the very practical question of what would happen to civil lawsuits if every disputed case went to a jury.  Prof. Thomas suggests that many more cases would settle, and that seems certain.  It’s likely too that many more cases would be diverted to arbitration, as banks, utility companies, and other businesses started writing arbitration clauses into their contracts.

What about the legislature?

Since summary judgment probably won’t be outlawed any time soon, though, the conceptual questions are more interesting than the practical ones.  What is the proper role of juries in our legal system?

Prof. Thomas is making a choice between judges and juries, but judges and juries are not the only pieces on the board.  The change she proposes would change the legislature’s role as well.  Many lawsuits are based on statutes that are dramatically counterintuitive.  Many patent cases, for example, have this fact pattern:  the defendant did in fact copy the plaintiff’s product, but changed it, so that the defendant’s product does not include all the features listed in the patent’s “claims.”  Patent law says that plaintiff loses, without question.  But copying your neighbor’s work is something jurors have learned from kindergarten is wrong, and it’s a difficult statute for them to enforce.  In  cases like that, summary judgment is an important tool in making sure the legislature gets what it wanted.

A consistent approach

Whether you agree or disagree with Prof. Thomas, it’s worth a minute to admire the consistency of her argument.  Much of the talk about the role of juries seems to focus more on the ends than the underlying ideas.  Thus for example the libertarian Cato Institute argues here against excessive punitive damages, but here for jury nullification.  At the level of principle, they’re the same thing.  When you give jurors more power, they may use it to nullify the jury instructions or multiply the punitive damages, but either way they’re using the power you gave them.  Prof. Thomas’s paper embraces that; it’s an argument for greater jury power, whereever it may lead.  For that and for its audacity, it’s a cogent addition to the ongoing conversation on this topic.

Back to voir dire questions

What does all this mean to a trial lawyer?  The world of academic discussion and the politics of juries can look very distant from our desks.  Some lawyers are routinely on the same side of an issue, and have a policy view to match; personal injury plaintiffs’ lawyers, for example, tend to oppose restrictions on punitive-damages awards.  In a business practice, on the other hand, we can easily represent — and our clients can easily be — plaintiffs in one case and defendants in another.  We don’t tend to talk about the role-of-the-jury debate around the coffee machine.

Even for the most opinionated lawyer, though, the politics fall away when jury selection begins.  It’s this jury, these witnesses, this judge, these lawyers, these issues, this day, and trying to get a sense of how it will all work together.

In that moment, the only politics that matter are the jurors’.  Are there jurors on the panel who feel strongly about the role of the jury?  Have they read about this issue?  Have they read anything to prepare for their job as a juror?  (You’re looking for something like the Fully Informed Jury Association’s Juror’s Handbook, which urges jurors to exercise independent power.)  Are they aware there are materials like that out there?  Can they agree to take their instruction from the judge, and not what they’ve read?  What groups do they feel associated with, or what groups’ publications do they follow?  (You want to know that for a hundred reasons, but here, you’re looking for groups who advocate as to either punitive damages or jury nullification.)  In most courts you need to make these questions very open-ended, or the judge will call it argument and shut you down.  But ask.


Related notes and sources:

1.  Eric Turkewitz’s post yesterday on New York Personal Injury Attorney Blog reminds us not to stereotype juries’ orjudge’s decisionmaking.  It’s so pithy it’s practically a haiku.

2.  For more on the conceptual relationship of punitive damages and nullification, a good article is Wenger and Hoffman, “Nullificatory Juries,” published in the Wisconsin Law Journal in 2004 and also here.  Wenger and Hoffman argue that “some kinds of damages have much in common with nullification,” and they collect references to several scholars who “have noted potential conceptual links between jury nullification and punitive damages.”

3.  For the future of this issue, keep an eye on Tellabs v. Makor Issues & Rights, to be argued before the Supreme Court on March 28.  SCOTUSblog describes the issue as the trial court’s “power to draw inferences in considering dismissal of securities fraud lawsuits.”


By Suja A. Thomas∗

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 (for example, civil rights cases), 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 Co. 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 Essay 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.

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