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Most litigators are very familiar with summary judgment, the procedure by which a court dismisses a case when it finds no genuine issue of material fact, or, in other words, decides that no reasonable jury could find for the nonmoving party. This procedure is so ubiquitous that it would be difficult for most attorneys to imagine litigation without it. But this is exactly what we should do. When one steps back to examine the relevant history and precedent, it becomes clear that summary judgment in the federal courts is unconstitutional. My argument for the unconstitutionality of summary judgment is based on the Seventh Amendment, which provides litigants with a right to a jury trial in suits at common law, and further provides that facts tried by a jury can be re-examined only according to the rules of the common law. The U.S. Supreme Court has stated that common law in the Seventh Amendment is the English common law in 1791, the year when the amendment was adopted. In examining whether a modern procedure is constitutional, the court requires that the procedure comport with the substance of the English common law in 1791. Nevertheless, the court has never decided the specific question of the constitutionality of summary judgment. In a recent article, I took up this inquiry, and reviewed the English common law in 1791 for comparable procedures. I came to the surprising conclusion that the very review by courts that occurs under summary judgment was prohibited under the common law. A judge could review the sufficiency of the evidence only upon a motion for a new trial. If there was any evidence, a jury would decide the case unless the moving party had admitted all of the facts and conclusions of the nonmoving party, however probable or improbable those facts and conclusions were. In other words, the modern motion to dismiss, by which the moving party accepts the facts alleged by the nonmoving party, is constitutional, but summary judgment is not. In the article, I address a number of responses to my argument for the unconstitutionality of summary judgment. Here, I’ll focus on one response: that the court dockets would be overcrowded and unmanageable if summary judgment were unavailable because the cases that would have been resolved upon summary judgment would instead go to trial. Although summary judgment lessens the load on the federal docket by its elimination of cases through settlement or dismissal, I propose that the federal courts in the aggregate would look very similar without summary judgment to the dockets with summary judgment. The availability of summary judgment certainly encourages the settlement of some cases, particularly those in which judges tend to grant summary judgment, for example, employment discrimination and antitrust cases. Because litigants may be concerned that their cases may be dismissed upon summary judgment, they may settle prior to summary judgment. Alternatively, after the grant or denial of summary judgment, litigants may settle because they do not want to appeal their cases, due to the risk of the outcome on appeal or due to the cost. Cases will continue to settle It is apparent, however, that most cases will continue to settle even without the availability of summary judgment. The fact remains that either party may lose at trial. Thus, settlement before trial is the best alternative to avoid the uncertainties of the jury room. While without summary judgment, plaintiffs on the whole would tend to receive more in settlement because summary judgment generally has been a device that has favored defendants, settlement, not trial, remains the least risky option for both parties. Putting aside the final settlement figure, a world without summary judgment may actually impose less of a burden on litigants and the courts than exists now, even if fewer cases are dismissed. To prepare for the motion, the parties engage in extensive discovery, which must be managed by the court, including decisions on the scope of discovery and other disputes. Following the discovery efforts, putting together the motion, response and reply takes significant resources of both litigants. And finally, the court must wade through often voluminous material to decide the motion. Without the availability of summary judgment, litigants might make real attempts to settle cases before discovery is complete, courts would be freed from deciding summary judgment motions and courts likely would spend less time on discovery. So a world without summary judgment is not likely to clog the court system as some fear. Certainly, striking down the procedure leaves open the possibility that a case with little evidence could go to a trial before a jury. However, whether litigants like this outcome or not, having a jury decide such cases is precisely what the Seventh Amendment guarantees. Suja A. Thomas is a professor at the University of Cincinnati College of Law. Her article, “Why Summary Judgment is Unconstitutional,” will be published in the Virginia Law Review . Currently, it may be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=886363 . Before joining the Cincinnati faculty, she practiced as a litigator for eight years in New York.

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