A few months ago I was writing a brief asking the appellate court to reverse the trial court's grant of the defendant's motion for summary judgment. During my research, I came across this line from a California case: "The summary judgment procedure, inasmuch as it denies the right of the adverse party of a trial, is drastic and should be used with caution." Mann v. Cracchiolo (1985) 38 Cal.3d. 18, 34. I had one of those moments where you think: "Gee, I never thought of it that way. I wonder if summary judgment is unconstitutional." I had less than 48 hours to finish the brief, and so I couldn't give the question further thought.
Summary judgment is 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.
You can - and should - read the full article here.