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Essentials of Summary Judgment Edward Brunet

Henry J. Casey Professor of Law Lewis & Clark Law School, Portland, Oregon

A. The Real Standard for Testing Summary Judgment Motions 1. Text of Rule 56(c): No Genuine Issue of Material Fact

a. Premised upon Seventh Amendment as historical right of jury to decide issues of fact. This means that it is unconstitutional for the court in deciding a summary judgment request to weigh the evidence. Weighing is a jury function

2. “Slightest Doubt” Test: Deny a Rule 56 motion if the slightest doubt exists a. Formulated by Judge Jerome Frank in Arnstein v. Porter, 154 F. 2d 464 (2d Cir.

1946) b. Slightest Doubt used in 2nd and other Circuits for many years. c. Difficult to get summary judgment under slightest doubt test. d. Some evidence evaluation(weighing) bound to occur under this approach. e. Even in 2d Circuit, some cases seem to ask if evidence of nonmovant could avoid the

grant of a directed verdict. 3. Slightest Doubt repudiated and criticized in Matsushita Elec. Ind. Co. v. Zenith, 475 U.S.

574(1986) and replaced by Directed Verdict test: Only grant motion if no way a reasonable jury could render a verdict for the nonmovant a. Weigh factual inferences against the moving party b. Do not weigh the evidence c. “Plausible” Trap: Several modern lower court decisions quote Matsushita for the

proposition that summary judgment must be denied if the nonmovant’s proof is “plausible.” Such decisions wrongly return to the old doubt standard and are wrongly decided.

d. In Bell Atlantic v. Twombley, 127 S. Ct. 1955 (2007), and Iqbal v. Ashcroft, 129 S. Ct. 1937 (2009), the Supreme Court adopts a cryptic “plausibility” standard for assessing Rule 12(b)(6) motions. Some commentators think that “plausibility” assessment is also intended for summary judgment as well. See, e.g. Thomas, 14 Lewis & Clark L. Rev. 15 (2010). The word “plausible” comes with a substantive past and was used in numerous antitrust cases to mean that a claim must make economic sense. See, Brunet, 14 Lewis & Clark L. Rev. 1 (2010).

B. Burden Shifting in Summary Judgment Motions

1. Old Law: Strong Burden on Moving Party to Show No Factual Issues a. Leading caselaw example: Adickes v. Kress, 398 U.S. 144 (1970). b. Practical meaning of case: summary judgments hard to get granted

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2. Academic Attack on Adickes: Summary judgment and Directed Verdict(now JML) should be analyzed the same way and only differ in timing

3. New Burden Shifting: Only a Light Burden on Movant to Point to a Lack of Nonmovant’s Evidence, assuming Nonmovant has the Burden of Proof at Trial

4. Celotex Corp. v. Catrett, 477 U.S. 317 (1986), creates burden shifting paradigm 5. Practical meaning of 1986 cases and change in law: summary judgment reinvigorated 6. Implicit Meaning of Celotex: summary judgment available for all types of cases

a. question old song that summary judgment should be denied in negligence cases b. question adage that no summary judgment in intent or complex cases

7. Burden Shifting in the trenches: Plaintiff nonmovant needs to advance evidence showing issue of fact to get to trial C. Summary Judgment Evidence Rules. See generally. Brunet, Summary Judgment Materials,

147 F.R.D. 647 (1993) 1. General rule: Evidence must be admissible 2. Exception: Celotex dictum of Chief Justice Rhenquist that nonmovant can advance

hearsay, provided material capable of conversion to admissible evidence by time of trial a. “Will-Call” witness used to defeat summary judgment motion b. Example of Hoff Letter in Celotex decision c. On remand, D.C. Circuit considers Hoff letter over vigorous dissent of Robert Bork,

826 F. 2d 33 (D.C. Cir. 1987). 3. Rule 56(e)

a. affidavits must be based on “personal knowledge” b. affidavits must be premised upon “specific facts”

4. Affidavits of Expert Witnesses a. admitted if pass muster under evidence rules b. must also pass tests of Rule 56(e) c. Daubert tests applicable at summary judgment stage d. fight fire with fire; if movant has expert affidavit, some decisions require nonmovant

to respond with expert affidavit D. Summary Judgment Ethics

1. Rule 56(g) a. Court required to sanction where affidavit in bad faith or solely to delay b. some courts read discretion into Rule to avoid sanctions c. better view: text of rule requires court to sanction if a violation

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2. Rule 11 a. Not mentioned in Rule 56 b. In Business Guides v. Chromatic Communications Enterprises, 498 U.S. 533

(1991),Justice Kennedy takes view that Rule 11 swallows Rule 56(g) (if violate bad faith rule, automatically violate Rule 11).

c. common for def. to seek and obtain a Rule 56 grant and then follow it by seeking R. 11 sanctions on grounds that plaintiff’s case lacked any factual or legal support

d. common to draft letter warning of rule 11 violation at the same time that def. serves R. 56 motion and permit plaintiff to withdraw case under threat of Rule 11 sanctions

E. Timing of the Rule 56 Motion

1. See generally Brunet, The Timing of Summary Judgment, 198 F.R.D. 679 (2001) 2. Rule 56 timing very permissive; hands off

a. 2009 Amendment states that motion can be made “at any time until 30 days after the close of all discovery.”

b. Means timing of motion within the discretion of counsel 3. Most common to move early to save discovery and trial costs 4. In theory can move for summary judgment late in case, even during trial 5. Some courts have local rules mandating a deadline for filing the motion 6. Common to move after some or even all discovery 7. Rule 56(f) acts as a valuable time-out for the nonmovant who is faced with defending

against the motion but lacks facts a. Rule 56(f) mandates the filing of an affidavit by the pl. who seeks additional time for

discovery to oppose the motion b. Affidavit should set forth how additional discovery will force motion for summary

judgment to be denied; a mere request for additional time should be denied under Rule 56(f)

Electronic copy available at: http://ssrn.com/abstract=1117603

Summary Judgment is Constitutional

Edward Brunet

93 Iowa L. Rev. 1625 (2008)

This paper can be downloaded without charge from theSocial Science Research Network Electronic Paper Collection:

http://ssrn.com/abstract=1117603

An index to the papers in the Lewis & Clark Law School Research Paper Series is located at:

http://www.ssrn.com/link/Lewis-Clark-LEG.html

Lewis & Clark Law School Legal Research Paper Series

Paper No. 2008 - 14

Electronic copy available at: http://ssrn.com/abstract=1117603Electronic copy available at: http://ssrn.com/abstract=1117603

(Forthcoming 93 Iowa L. Rev.___)

Summary Judgment Is Constitutional

Edward Brunet*

This article demonstrates that summary judgment is constitutional and does not violate the Seventh Amendment. Two historical antecedents, used by common-law courts, justify modern summary judgment, trial by inspection and demurrer to the evidence. Trial by inspection, as explained by Blackstone, Coke, and Maitland, allowed a common-law judge to inspect evidence visually and then decide “obvious” cases without ever impaneling a jury. In contrast, a jury would be used if pretrial inspection demonstrated legitimate “doubt” about the relevant issue. Demurrer to the evidence, while not identical to summary judgment, is similar because it allowed a judge to take a case away from a jury where the nonmovant’s evidence failed to prove a claim or defense. The article criticizes a rigid interpretation of the right to jury trial and, in its place, contends that courts should use a more pragmatic, modern construction of the Seventh Amendment. This pragmatic interpretation of the right to jury trial, which has been used by Justices Rehnquist, Brennan, Rutledge, Stone and McKenna, is consistent with the flexibility of the English common-law. English courts were constantly competing for business and continually changed procedures in an effort to compete effectively. It is this utilitarian and pragmatic common-law history that justifies use of a more pragmatic and flexible construction of the Seventh Amendment.

I. Introduction

While no device precisely like summary judgment existed at common law, pre-1791

judges used a pre-trial procedure to decide obvious facts in a manner analogous to a Federal Rule

of Civil Procedure Rule 56 (“Rule 56”) motion for summary judgment. First, this Article will

analyze this common-law procedure, trial-by-inspection, and find it a comfortable antecedent to

modern summary judgment. Second, it will contend that the argument that summary judgment is

unconstitutional depends on a rigid, erroneous interpretation of the Seventh Amendment. Courts

should use a modern, more “pragmatic” Seventh Amendment approach that eschews a mirror

image between a common-law procedure and its descendant. Instead, the proper interpretation is

* Henry J. Casey Professor of Law, Lewis & Clark Law School. I thank Stephen Raher and Wendy Hitchcock for valuable research assistance and Al Alschuler, Tomas Gomez-Arostegui, Alexi Lahav, Bill Nelson, Peter Nycum, James Oldham, Marty Redish, Steve Subrin and Suja Thomas for comments. Any errors are mine.

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Electronic copy available at: http://ssrn.com/abstract=1117603Electronic copy available at: http://ssrn.com/abstract=1117603

consistent with summary judgment as long as it differs from its historical antecedent in incidental

ways. This less rigid, pragmatic approach to the Seventh Amendment is itself rooted in the

common -law which was flexible and utilitarian in nature; pre-1791 English courts were

overtaxed and strained for resources and thus constantly tinkered with procedural changes.1 The

expansion of special merchant juries, the development of evidence rules to bar confusing

evidence from the jury, and the common-law courts’ borrowing procedures used by equity courts

each demonstrate that common-law courts modified their procedures for utilitarian reasons. The

common-law’s flexibility justifies use of a more liberal interpretation of the Seventh

Amendment. Although summary judgment is different than trial by inspection or demurrer to

the evidence, it differs in only incidental ways and, therefore, is constitutional.

This Article will not quarrel with the notion that improper application of summary

judgment raises serious constitutional questions. My co-author Martin Redish and I have said

that summary judgment rests on a “tenuous constitutional foundation.2 ” At common-law, judges

usually did not decide issues of historical fact. Modern constructions of Rule 56 likewise

continue this allocation of function.3 Whenever an appellate court reverses a grant of summary

judgment for on the basis that the trial court decided a genuine issue of material fact—a common

occurrence—the appellate court essentially finds the work of the trial court unconstitutional.

1 See, e.g., J.H. BAKER, AN INTRODUCTIION TO ENGLISH LEGAL HISTORY 40 (4th ed. 2002) (referring to a “struggle for business between the common-law courts”); Daniel Klerman, Jurisdictional Competition and the Evolution of the Common Law, 74 U. CHI. L. REV. 1179, 1179 (2007) (concluding that the common law courts competed for business and changed procedures to make them less expensive and more efficient); Todd Zywicki, The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis, 97 NW. U. L. REV. 1551, 1581–1621-1615 (2003) (noting that innovative changes led to competition among courts led to innovative changes to legal rules).); J.H. Baker, An Introduction to English Legal History 40-41 (4th ed. 2002) (referring to a “struggle for business between the common-law courts”). 2 EDWARD J. BRUNET & MARTIN H. REDISH, SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE 16 (3d ed. 2006). 3 See infra notes 105–107 and accompanying text (discussing the proper interpretation of Rule 56).

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Professor Thomas should be commended for making the argument that summary

judgment is unconstitutional and for properly placing her argument in a historical interpretation.4

The plain meaning of the text of the Seventh Amendment requires some sort of historical

connection to the common-law that existed in 1791 at the time of the Seventh Amendment’s

adoption.5 Moreover, the constitutional question posed by Professor Thomas is especially timely.

Summary judgment is under attack.6 Professor Burbank has rightly underscored the need to base

arguments regarding summary judgment upon empirical data7 and recent empirical studies paint

a mixed picture of both increased use of summary judgment and a summary judgment filing rate

of 17-21%---hardly a number to invoke a crisis.8

Nonetheless, it is overly broad for Professor Thomas to suggest boldly that summary

judgment is always unconstitutional; there are many instances where summary judgment passes

constitutional muster. Whenever judges improperly decide factual issues summary judgment is

4 See Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. 119 (2007) (arguing that summary judgment violates the Seventh Amendment). 5 See, Martin Redish, Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Making, 70 NW. U. L. REV. 486, 486 (1975) (discussing the historical interpretation of the Seventh Amendment); Charles W.); Bernard Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639, 640–-641 (1973) (citation omitted) ( asserting that a link to a procedure used in 1791 is necessary under historical test to “preserve” a right to a jury). 6 See, e.g., John Bronsteen, Against Summary Judgment, 75 Geo. Wash. L. Rev. 522 (2007) (summarizing and agreeing with Thomas’ arguments that summary judgment is unconstitutional); Arthur R. Miller, The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. Rev. 982 (2003) (questioning increased use of summary judgment); Patricia Wald, Summary Judgment at Sixty, 76 Texas L. Rev. 1897 ( 1998) (emphasizing impact of wide use of summary judgment). 7 Stephen Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. Empirical Legal Stud. 591 (2004) (stressing the need to base arguments on empirical evidence). 8 See Joe S. Cecil, A Quarter-Century of Summary Judgment Practice in Six Federal District Courts,4 J. Empirical Legal Stud. 861,887, 896 (2007) (showing that rate of summary judgment motion filings and case terminations by summary judgment have increased but detailing a filing rate in a six district 25 year study of 21% in 2000); Joe Cecil & George Cort, Estimates of Summary Judgment Activity in Fiscal Year 2006 (unpublished June 15, 2007,Federal Judicial Center study in memorandum form indicating that in 2006 approximately 17 motions for summary judgment are filed for every 100 cases that are terminated) (on file with author)

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unconstitutional. In contrast, judges may constitutionally grant summary judgment based upon

either legal principles or finding obvious facts because they have been doing so for several

centuries.

Several thoughts about methodology should be aired at the outset. Like Professor

Thomas, I am both a researcher of history and an advocate. I concede that these two roles are

conflicting and can cause a reader to doubt the many judgment calls made in this essay. I have

tried to quote extensively, even in text, to provide the reader a genuine opportunity to form an

independent judgment about the language used by old cases and commentary. The severity of

this problem of dual roles and admitted author bias is mitigated, hopefully, by the lengthy

quotations themselves.

Part of this paper assumes the legitimacy of some type of historical test of the Seventh

Amendment right to jury trial.9 Under this textual approach, the Seventh Amendment

“preserves” a right to jury trial as it existed at common law. To make my case that summary

judgment is constitutional, I need to demonstrate that a procedural device like summary

judgment existed at common -law. In order to clarify my approach, I consider these to be the

basic indicia of summary judgment10:

• a pre-trial device;

• allocating a decisional task to the judge in a case otherwise tried by a jury;

• confining the judicial task to decide questions of fact that are obvious and could

lead to but one answer;

9 See, e.g., Edith Guild. Henderson, The Background of the Seventh Amendment, 80 HARV. L. REV. 289, 291–98 (1966) (discussing the history of the Seventh Amendment’s adoption); Wolfram, supra note 5, at 747 (affirming the legitimacy of an historical interpretation of the Seventh Amendment). 10 See, e.g., 11 Moore’s Federal Practice 56.01 et. seq. (3d ed, 1997)

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• allocating a decision to the jury where the determination of the issue is uncertain

or doubtful;

• articulating a policy goal of judicial efficiency.

Any common-law procedure that meets these criteria is a blueprint for modern summary

judgment. and an appropriate historical antecedent for summary judgment. My willingness to

insist on use of some variety of historical test is driven by textualism and the Seventh

Amendment’s command that the right to jury be “preserved.”11 My concurrence with Professor

Thomas does not mean that I concede the use of her static and inflexible reading of the historical

test. The weight of scholarly authority has rightly criticized a narrow, inflexible application of

the historical approach.12 As I will set forth in Part III, I read the caselaw landscape as properly

evolving into a modern interpretation of “preserved,” which will uphold any new procedure that

has a reasonable historical antecedent; exact mirror images between old and new procedures are

unnecessary13 and not required in this more pragmatic constitutional interpretation.14

11 See, e.g., Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 588-89 (1989) ( referring to “textually faithful” interpretations). 12 See, e.g., Matthew P. Harrington, The Economic Origins of the Seventh Amendment, 87 IOWAIA. L. REV. 145, 148–51 ( ( 2001) (arguing that the text of the Seventh Amendment was “precatory” in nature and designed primarily out of economic motivation and not to define types of cases to be decided by the jury); John McCoid, Procedural Reform and the Right to Jury Trial: A Study of Beacon Theatres, Inc. v. Westover, 116 U. PA. L. REV. 1, 11 (1967) (concluding that caselaw using a modern historical test “fits well with the conception of the Constitution as a durable document providing continuingly useful standards for an evolving society”); Redish, supra note 5, at 487 (asserting that “blind adherence to history would seem to place modern judicial administration in an historical strait jacket, controlled by the policies of a society of 200 years ago”). 13 Id.

14 See, e.g., William Nelson, Summary Judgment and the Progressive Constitution, 93 IOWA. L. REV. ___ (2008); James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 6 (2006) (describing the survival of the historical test “despite unrelenting criticism from those who favor flexibility in constitutional interpretation”); Daniel A. Farber & Suzanna Sherry, Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations 153-54 (2002) ( rejecting a “grand theory” of constitutional interpretation and praising legal pragmatists who use common law reasoning that varies from case to case);William N. Eskridge, Jr.,

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II Pre-1791 Procedures Included a Summary Judgment Analog:

Judicial Factfinding by Trial-by-Inspection

Although the common law lacked a transsubstantive15 procedure exactly like summary

judgment, one established procedure, trial-by-inspection, bears a remarkably close resemblance

to summary judgment and justifies the conclusion that a summary-judgment procedure existed

historically in or around 1791.

A. The Classic Commentators: Blackstone’s and Coke’s

Versions of Trial-by-Inspection Demonstrate a Clear Lineage

to Modern Summary Judgment

1. Blackstone’s Treatment of Trial-by-Inspection.

Trial-by-inspection or examination was a common law procedure that allowed the trial

judge to decide obvious factual issues rather than submitting them to a jury. Under this

essentially pre-trial procedure, a judge would summon a party to the courtroom, take evidence,

Relationships Between Formalism and Functionalism in Separation of Powers Cases, 22 Harv. J. L. & Pub. Pol’y 21, 27 (1998) ( noting that “proper constitutionalism includes with it elements of stability and continuity in the core rules and principles contained in the foundational document but also contains escape hatches of flexibility to adapt to inevitably new and changed circumstances”).

15 Transsubstantive rules of procedure apply generally to any type of case. See Robert M. Cover, For James Wm. Moore: Some Reflections on a Reading of the Rules, 84 YALE L. J. 718, 718 (1975) (describing a system of transsubstantive rules as “generalized across substantive lines”). Judge Charles Clark strongly argued that one set of generalized rules should apply for all types of civil cases and vigorously opposed creating special rules for special cases. See, e.g., Charles E. Clark & James Wm. Moore, A New Federal Civil Procedure— I., The Background, 44 YALE L.J. 387, 387–388-89 (1935) (discussing how “the act conferring upon the United States Supreme Court the power to make rules of procedure for federal civil actions” passed and celebrating the “promise” of uniformity in civil cases); Charles E. Clark, Special Pleading in the “Big Case,” 21 F.R.D. 45, 47 (1958) (“I assert dogmatically that strict special pleading has never been found workable or even useful in English and American law.”).

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and adjudicate a critical issue without the assistance of a civil jury. Blackstone, writing in the

mid-eighteenth century, describes trial-by-inspection in this way:

[W]hen for the greater expedition of a cause, in some point or issue being either the principal question or arising collaterally out of it, but being evidently the object of sense, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute. For where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it; who are properly called in to inform the conscience of the court in respect of dubious facts; and therefore when the fact, from its nature must be evident to the court either from ocular demonstration or other irrefragable proof, there the law departs from its usual resort, the verdict of twelve men, and relies on the judgment of the court alone.16 The essence of the described procedure is is pretrial judicial factfinding of key issues

presented where the result was likely to be obvious. Blackstone’s description of trial-by-

inspection closely approximates summary judgment procedure. Under the trial-by-inspection

process set forth by Blackstone, the judge clearly was permitted to usurp the factfinding function

normally allocated to a civil jury.

Though Blackstone is referring to trial-by-inspection, he is clearly describing an ancient17

procedure that smacks of summary judgment. Three summary judgment-like policies animate

Blackstone’s characterization of trial-by-inspection. First, it appears that judicial economy

motivates the trial-by-inspection device.18 Efficient courtroom management was critical to

common—law courts and is demonstrated by the development of trial-by-inspection that allowed

the courts to decide easy issues summarily. Second, the use of trial-by-inspection appears

16 WILLIAM BLACKSTONE, 3 COMMENTARIES 331–32. 17 See Robert D. Brain & Daniel J. Broderick, The Derivative Relevance of Demonstrative Evidence: Charting Its Proper Evidentiary Status, 25 U.C. CAL. DAVIS L. REV. 959, 986–-87 (1992) (asserting that “[t]his type of trial [by inspection] originated centuries before Blackstone’s Commentaries”). 18 Blackstone refers to “expedition” as a policy consideration justifying trial- by- inspection. 3 BLACKSTONE, supra note 16, at 331. III Blackstone’s Commentaries, at 331-332.

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designed to save the judge the task of impaneling a jury. Therefore, such a task was pre-jury trial

in nature; this time savings or “jury economy” reason rests on a familiar efficiency theme of

avoiding the allocation of unnecessary tasks to the jury. As subsequent segments of this essay

demonstrate, the common law was resourceful in expenditures and would not impanel a jury

unless necessary.19 Third, trial-by-inspection seems to have decided easy questions, issues so

clearly determined that Blackstone describes them twice as obvious.20 This procedure advanced

both judicial economy and jury economy by efficiently deciding a dispute and doing so swiftly

through the courts’ exercise of unilateral and discretionary powers. It is significant that the task

of selecting and impaneling a jury was entirely by-passed by trial-by-inspection. Like summary

judgment, trial-by-inspection sped up the adjudication process and advanced jury economy

policies by permitting the judge to decide factual questions that would otherwise be determined

by the jury.

Blackstone proffered several illustrations to aid his detailed description of trial-by-

inspection. The first was a suit by an alleged minor to reverse a fine because of his age. Using

trial-by-inspection the court could summon the plaintiff and visually examine him. Alternatively,

if the visual examination was inconclusive, the judge “may proceed to take proofs of the fact;

and particularly, may examine the infant himself upon an oath of voire dire, veritatem decire,

that is, to make true answer to such questions as the court shall demand of him.”21

19 See infra notes 46–80 & accompanying text. 20 BLACKSTONE, supra note 16, at 331–332. 21 Id.., at 332.

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The above illustration of trial-by-inspection bears a remarkable likeness to summary

judgment. The court decided an issue of fact that is central to the case22 and did so by examining

admissible evidence. Indeed, this illustration of judicial power might aptly describe a typical

modern summary judgment since both trial-by-inspection and summary judgment permit judicial

consideration of live testimony rather than reliance upon a written record. Yet, although modern

judges occasionally call live witnesses when considering a Rule 56 motion under their general

powers granted by Rule 43(e),23 this authority is generally thought to be restrained by Judge

Easterbrook’s sensible theory that “one trial per case is enough.”24

Blackstone offered a second example of trial-by-inspection—that of a suit for mayhem.25

The central issue in such cases was whether the plaintiff had suffered a serious injury by

fighting.26 Trial-by-inspection allowed for a quick and determinative decision as to the severity

of the plaintiff’s injury.27 In Blackstone’s terms, “the issue joined is whether it be [mayhem] or

no [mayhem]; this shall be decided by the court upon inspection, for which purpose they may

call in the assistance of surgeons.”28

22 See Davis, Note, supra, note 17 at 987 ( concluding that trial- by- inspection involved “proof of a primary, material issue and not as a secondary illustration of other evidence”). 23 FED. R. CIV. P. 43(e) (granting a court the authority to call live witnesses to decide any motion). 24 Stewart v. RCA Corp., 790 F. 2d 624, 629 (7th Cir. 1986). See generally BRUNET & REDISH, supra note 2, at 210–-215 (describing the occasional use of Rule 43(e) hearings in deciding summary judgment motions and calling for restraint in their use). 25 BLACKSTONE, supra note 16, at 332. 26 Id. 27 Id. 28 Id.

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This second example also looks like today’s summary judgment: a key issue of a case

was selected for early consideration with the potential for concluding the case. The judge

decided the issue of requisite physical injury without ever empanelling the jury. The reference to

possibly enlisting a physician to provide expert input is consistent with summary judgment

procedure. The use of experts to decide whether the issue is worthy of jury determination is

common in summary judgment and should not be considered an aberration to the summary

adjudication process.29 Use of expert affidavits to support and oppose modern summary

judgment has become routine and, in turn, has created a set of rules to assimilate expert opinion

into the summary judgment process.30

Trial-by-inspection was used not only in cases involving age and mayhem, but also to

decide other types of issues. The trial court could make critical decisions of identity and sanity

using this process.31 In deciding personal identity or purported idiocy, the judge “determined the

question by an inspection of the person of the alleged idiot.”32 The inspection process in such

cases would be the same as in mayhem or age cases: The court would engage in what Blackstone

termed an “ocular examination” of the alleged idiot and decide the critical issue in a manner

29 See, e.g., Maffei v. N. Ins. Co. of N. Y., 12 F. 3d 892, 895–-97 (9th Cir. 1993) (reversing trial court exclusion of the nonmoving party’s expert testimony); Whetstine v. Gates Rubber Co., 895 F.2d 388, 394 (7th Cir. 1990) (considering a defense- expert affidavit on the issue of product defect). The use of experts in summary judgment is growing but has its critics. See, e.g., Mid-State Fertilizer Co. v. Exch. Nat’l Bank of Chi., 877 F. 2d 1333, 1340 (7th Cir. 1989) (criticizing the expert affiant as providing “ukase in the guise of expertise” and becoming “a shill for [the plaintiff]”) (Easterbrook, J.). 30 See BRUNET & REDISH, supra note 2, at 257–-272 (discussing the growing use of expert affidavits in summary judgment). 31 See Note, Power of Court to Order Physical Examinations in Personal Injury Cases, 25 VA. L. REV. 73, 77 (1938) (asserting that “[i]n former times, when the issue of a person’s infancy, identity or sanity was raised, the English courts might in their discretion decide it by an actual inspection or examination of the person in court, without calling upon a jury”). 32 See Seymour D. Thompson, Trial by Inspection, 25 CENT. L.J. 3, 3–4 (1887) (referring to use of trial-by-inspection in deciding issues of age, idiocy, mayhem, atrocious battery, and personal identity).

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similar to summary judgment by determining whether the result was obvious.33 The judicial task

was akin to applying today’s summary judgment standard: the court removed the decisional task

from the jury and decide the case itself as if there were no way a reasonable jury could find for a

party. Generally, the judge would visually “inspect” a party to determine if an issue such as age,

identity, or physical injury could be so obvious that no jury was necessary. However, it was also

possible to take testimony from physicians to aid in the determination of the issue.

Within these examples, Blackstone articulated an important homily that was both

illustrative of the power and respect for the common-law jury and useful to summary judgment

evolution. In any trial-by-inspection, the “judges, if they conceive a doubt, may order it to be

tried by jury.”34 This statement might have been describing summary judgment mechanics—if

there is doubt about whether the proof eliminates an issue of fact the motion must be denied.

This quote presaged Jerome Frank’s famous Arnstein v. Porter decision which called for

rejection of summary judgment if there existed the “slightest doubt” about an issue of fact.35

The Blackstone quotation regarding doubt also contemplates a clear allocation of function

between the common law judge and jury. Cases raising uncertain factual inferences are the tas

of the jury; disputes where the factual issues are obvious are the province of the c

k

ourt.

33 See Blackstone, supra, note 16, at 331-32 (referring to lack of need to use a jury to decide “obvious” questions). 34 WILLIAM BLACKSTONE, 3 COMMENTARIES, 325, 333. 35 Arnstein v. Porter, 154 F. 2d 464, 468 (2d Cir. 1946) (citing Doehler Metal Furniture Co. v. United States, 149 F.2d 130, 135 (2d Cir. 1945)).). During the 1940’s the Second Circuit used a summary judgment standard that would deny a Rule 56 motion if the “slightest doubt” existed concerning a genuine issue of material fact. See, Doehler, 149 F. 2d 130, 135 (2d Cir. 1945) (noting that a “litigant has a right to a trial where there is the slightest doubt as to the facts”). For a detailed discussion and criticism of the slightest doubt test, see BRUNET & REDISH, supra note 2, § 6.3. The slightest- doubt test was rejected in Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), in which the court asserted that the task of the nonmovant is “more than simply show[ing] that there is some metaphysical doubt as to the material facts.”.

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The significance of this Blackstone quotation concerning doubt cannot be overstated.

Summary judgment not only resembles trial-by-inspection, it is constrained and cabined by the

very same considerations. In trial-by-inspection, clear, obvious cases can be removed from jury

consideration; doubtful cases must go to the civil jury. While Blackstone was describing the

dynamics of trial-by-inspection, he might as well have been explaining summary judgment

procedure. The fact that Blackstone wrote such a detailed and positive 36description of trial by

inspection is particularly noteworthy. Blackstone was writing in the mid eighteenth century, not

long before 1791, and, in Professor Thomas’ words, Blackstone had written “of the importance

of the jury.”37

2. Coke’s Treatment of Trial-by-Inspection.

Trial by inspection included decisions on other types of issues as well as trial judge

determinations of age and mayhem. Critical decisions of identity and sanity could be decided by

the trial court using this process.38 In cases of establishing personal identity or purported idiocy,

the judge “determined the question by an inspection of the person of the alleged idiot.”39 The

process of the inspection in such cases would be the same as in mayhem or age cases—the court

would engage in what Blackstone termed an ocular examination and decide a critical issue in a

manner similar to summary judgment by determining if the result was obvious. The judicial task

37 Suja A. Thomas, Why the Motion to Dismiss is Now Unconstitutional, 92 Minn. L. Rev. ___(2008) (quoting Blackstone, supra note 33 at 379-380, who warned that allocating decisions to magistrates would “frequently have an involuntary bias towards those of their own rank and dignity” and praised juries as “sensible and upright…[and] the best investigators of truth and the surest guardians of public justice”). 38 See Note, Power of Court to Order Physical Examinations in Personal Injury Cases, 25 VA. L. REV. 73, 77 (1938) (asserting that “[I]n former times, when the issue of a person’s infancy, identity or sanity was raised, the English courts might in their discretion decide it by an actual inspection or examination of the person in court, without calling in a jury”) (emphasis in original). 39 See Seymour D. Thompson, Trial By Inspection, 25 CENT. L.J. 3-4 (1887)(referring to use of trial by inspection in deciding issues of age, idiocy, mayhem, atrocious battery, impotency and personal identity)

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was akin to applying today’s summary judgment standard: the court would remove the

decisional task from the jury and decide the case itself if there was no way a reasonable jury

could find for a party. Generally the judge would visually “inspect” a party to determine if an

issue such as age or identity or physical injury could be so obvious that no jury was necessary.

However, it was possible to also take testimony of physicians to aid in the determination of the

issue.

Coke, writing at the time of Elizabeth I, discusses trial-by-inspection and confirms its

importance as an efficient pre-trial technique in which the judge used his senses to decide an

issue that otherwise may have been determined by a jury.40 It is useful to consider Coke’s

explanations of trial-by-inspection and to compare this procedure to summary judgment. In The

Case of the Abbot of Strata Mercella, Lord Coke explained trial-by-inspection by setting forth

several illustrations of its use by judges.41 Coke states that:

if the plaintiff makes42 attorney in court, and the defendant pleads

that the plaintiff is dead, and one appears and says, he is the

plaintiff, which is denied by the other party, the Justices shall

adjudge if he who now appears be the same person who made an

attorney in court.43

40 Case of the Abbot of Strata Mercella, 9 Co. Rep. 24a, 31a, 77 Eng. Rep. 765, 776 (1591). 41 Id. Coke’s case reports can read more like summations of the law than a taut reporting of the facts and law applied to a dispute. See SIR WILLIAM HOLDSWORTH, V A HISTORY OF ENGLISH LAW 462–63 463 (3d ed. 1945) (noting that “[t]o to “a certain extent Coke was guided by the nature of the cases which he was reporting” but explaining that sometimes Coke “makes the case a mere text for a summary of the law on the subject”). 42 As used here the word “makes” means “appears.” In context, Lord Coke stated that the plaintiff appears as attorney in court, thereby allowing the judge to see and identify the plaintiff and to later assess whether the person who claims to be the plaintiff is really the same person. See, e.g., T. CUNNINGHAM, I A NEW AND COMPLETE LAW DICTIONARY passim (1764) (using the (phrase “makes attorney” as “appears as attorney”). 43 9 Co. Rep. 30 (1592); 77 Eng. Rep. 775-776 (1592).

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This example is similar to Blackstone’s conception of trial-by-inspection as it relies on the

judge’s observation of live evidence in the courtroom. Coke’s second example sets forth a

property dispute in which the age of a party was at issue.44 Coke asserted that “it shall not be

tried by the country for the great delay to the demandant but a writ shall be awarded to the

Sheriff, commanding him” to bring the party in question to the court for examination.45 Coke’s

description of this process, like Blackstone’s, involved using the sense of sight to allow a judge

to decide a critical issue without impaneling a jury. Coke’s articulation of efficiency as a

justification for the inspection process illustrates the sixteenth-century common law’s reliance on

utilitarian reasoning when allocating function between judge and jury. It is also noteworthy that

Coke clearly understood that trial-by-inspection involved the trial judge taking an issue from a

jury. Trial-by-inspection, to Coke like Blackstone, was not a procedure that operated in a

vacuum but one that clearly allocated a task to the court rather than to the civil jury.

B. Other Commentators Describe Trial-by-Inspection as an

Early Version of Summary Judgment

Pollock and Maitland’s detailing of English legal history also explains what appears to be

trial-by-inspection as a separate mode of trial distinguished from trial by jury. In their chapter on

pleading and proof, they describe a procedure that resembles trial-by-inspection: “If it was

asserted that a litigant was not of full age, the justices would sometimes trust their own eyes; if

44 Id. 45 Id. at 53-54. The phrase “by the country” means “tried by a jury.”

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they doubted, he made his proof by a suit of twelve witnesses.”46 This quote addresses judicial

uncertainty regarding whether the question at issue required the judge to empanel a jury. The

quotation also confirms judge’s use of the senses in a manner identical to Blackstone’s reference

to a court’s ocular examination.47

The edited version of Bracton appears to describe trial-by-inspection without using the

term.48 In his description of proving age, Bracton clearly distinguishes between using a jury or,

alternatively, allocating the decision to a judge “if age has been proved by the look of the

body.”49 Bracton also writes that “neighbors and . . . relatives” decide proof of age where “the

judges have doubted” following a judicial “view” of the person whose age is at issue.50 This

early articulation of “doubt”51 as a triggering mechanism for allocation to the jury is significant.

It illustrates a summary-judgment-like approach to assigning functions to judge and jury.

Coke’s and Bracton’s selection of cases involving age to illustrate trial-by-inspection

should not be taken lightly. During the common law period proof that a plaintiff was underage

was one of just a few available defenses in a contract case. 52 The availability of an efficient

46 SIR FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, II THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I 639–40 (2d ed. 1898) (.), citing Bracton, f.424 b; Note Book, p. 46, 687, 1131, 1362). 47 Cf. BLACKSTONE, supra note 16, at 331–32. 48 6 HENRICI DE BRACTON, DE LEGIBUS ET CONSUETUDINIBUS ANGLIÆ 353 (Sir Travers Twiss. ed. (London, Longman & Co. 1883)). The original notes of Bracton date from 1250. 49 Id. 50 Id. ( providing editor’s marginal notes “concerning the proof of age by the look of the body” and asserting, in text, that the person “shall be held to be of majority as regards all persons, and no further dispute is to be raised” when “the justiciaries have adjudged such a person to be of majority”). 51 Id. at 355 (providing editor’s marginal notes referring to doubt of age in the notation “if the justiciaries have doubted . . .”). 52 See Klerman, supra note 1, at 1190 (noting that the “defendant had practically no defenses at common law” because of limitations of the fraud concept and asserting that the “only other defense was incapacity, usually that the

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procedure such as trial-by-inspection meant that proof of incapacity could lead to a quick

dismissal. It is also noteworthy that proof of insanity, one of the other few available defenses to

breach of contract claims, also made use of trial-by-inspection.53

Other commentators describe the process of trial-by-inspection similarly and in a manner

consistent with modern summary judgment. James Glassford’s treatise on evidence sets forth

trial-court ocular evaluation of alleged forgeries as analogous to what “the English law

denominates Trial-by-Inspection or Examination; and which, if no other proof be requisite, is, on

account of the simple and direct nature of the evidence, taken by the Judge, without intervention

of a jury.”54 George Custance’s constitutional law treatise describes using trial-by-inspection

“when the point or issue is the object of sense; so that the judges upon the testimony of their own

senses may decide the question.”55 Nathan Dane’s Digest of American Law explains trial-by-

inspection as though the procedure was a major feature of common law trials. He lists trial-by-

inspection as one of seven different English modes of trial56 and cites Blackstone’s explanation

of trial-by-inspection as “being evidently the object of sense, the judges deciding on their own

contracting party was underage or insane”); D.J. IBBETSON, HISTORICAL INTRODUCTION TO THE LAW OF OBLIGATIONS 71 (1999) (asserting that both an infant and a lunatic lacked capacity to sue). 53 Id. 54 JAMES GLASSFORD, AN ESSAY ON THE PRINCIPLES OF EVIDENCE AND THEIR APPLICATION TO SUBJECTS OF JUDICIAL INQUIRY 323 (1820). 55 GEORGE CUSTANCE, A CONCISE VIEW OF THE CONSTITUTION OF ENGLAND 334 (2d ed. 1808) (stating that trial-by-inspection was used “in cases of nonage, idiotism, and the like” and also in cases involving determining a proper date). 56 VI NATHAN DANE, A GENERAL ABRIDGMENT AND DIGEST OF AMERICAN LAW WITH OCCASIONAL NOTES AND COMMENTS 231 (1824) (setting forth seven different modes of trial: “1. By record, 2. By Inspection; 3. By certificate; 4. By witnesses; 5. By Jury; 6. by oath of the party, as in usury . . . and in England, as seventh may be added, by battle and wager of law”); see also, JOHN P. GRANT, A SUMMARY OF THE LAW RELATING TO THE GRANTING OF NEW TRIALS IN CIVIL SUITS BY COURTS OF JUSTICE IN ENGLAND 9 (1817) (providing a similar list of these seven ways to resolve disputes at common law). ).

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view.”57 Dane also emphasized that “if the judges doubt, they may call a jury”;58 this need for an

obvious result stemming from a summary inspection was a constant theme in all descriptions of

civil use of this common law procedure. Highmore’s treatment of the law relating to idiocy

refers to trial-by-inspection as the ordinary manner of trial59, as compared to determinations of

lunacy, which merits a full trial on the merits because of the presence of “lucid intervals.”60

Prominent American evidence scholars questioned the traditional divide between judge

and jury function and confirmed that trial-by-inspection was a regular fixture in common law

pre-trial adjudication. Wigmore attacked the often-stated notion that questions of fact are for the

jury as a “conventional brocard [that] cannot be taken as a trustworthy guide” and emphasized

that judge-jury functions were part of “the general powers of the judge in supervising and

controlling the jury.”61 Wigmore also explained trial-by-inspection as a trial “by the judge’s own

observation of the fact in court.”62 Thayer’s 1898 evidence treatise downplayed the role of the

common law jury by asserting that “there is not, and never was, any such thing in jury trials as an

allotment of all questions of fact to the jury” and, in contrast, he upgraded the role of the court by

57 DANE, supra note 56, at 231 (citing 3 BLACKSTONE’S COMMENTARIES, supra note 16, at 331–33). 58 DANE, supra note 56, at 231. 59 ANTHONY HIGHMORE, A TREATISE ON THE LAW OF IDIOCY AND LUNACY 25 (1st American ed.,1822) (noting that trial-by-inspection is used to “discern” idiocy). 60 Id. at 123–24. 61 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 2549 (3d ed. 1940). 62 Id. at § 2555 (citing 3 BLACKSTONE, supra note 16, at 331). Wigmore noted that “no recognition would probably be given it to-day;, except in the ensuing instance.” Id. He Wigmore continued by providing an example of using trial- by- inspection to interpret a judicial record, citing Coke, 1628, Co. Litt. 260a (“If such a record be alleaged, and it be pleaded that there is no such record, it shall be tried only by itselfe”). Id.

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asserting that “judges have always answered a multitude of questions of ultimate fact, of fact

which forms part of the issue.”63

While English common law judges certainly used trial-by-inspection for centuries, at

some point—probably in the nineteenth century—trial-by-inspection “as a formal and distinct

mode of trial . . . ha[d] fallen into disuse.”64 Writing in 1832, Starkie asserts that “non-age was

formerly tried by a jury of eight men” and that “the fact of infancy must, in this country, be tried

per pais and not by inspection.”65 Writing in 1824, Stephen describes trial-by-inspection and its

use in age and dower cases, but suggests that it is “not now known in practice” and “seems to be

not a mode so exclusively appropriate.”66 Gresley, while acknowledging that “there was an

ancient form of trial called Trial by Inspection or Examination, in which the Judges determined a

point in question, upon the direct testimony of their own senses,” added that “[t]his mode of

decision may now be considered obsolete at common law, but an equity judge exercises in

certain cases a very similar power.”67

The eventual demise of trial-by-inspection in the United States may have been caused by

the strong preference to try questions of fact and even law to the jury. Professor Nelson has

chronicled the strong support during the colonial era for trial by jury, including the jury’s

63 JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 185, 202 (1898). 64 See, e.g., 3 SIMON GREENLEAF, A TREATISE ON THE LAW OF EVIDENCE 323 (16th ed. 1899) (noting that “[T]rial by inspection, or personal examination of the subject of controversy, by the judge, was anciently familiar in the courts of common law” (citing 3 BLACKSTONE, supra note 16, at 331)). 65 THOMAS STARKIE, A PRACTICAL TREATISE ON THE LAW OF EVIDENCE 723 n.m (1826 (citing 3 BLACKSTONE supra note 16, at 332 and Sliver v. Shelback, 1 U.S. (1 Dall.) 165, 166 (1786)). Starkie , also notes inconsistently that the “trial of the non-age of a party is either by inspection or in the ordinary way by a Jury.” Id. at 723. 66 HENRY JOHN STEPHEN, A TREATISE ON THE PRINCIPLES OF PLEADING IN CIVIL ACTIONS 131–32 (Chi., Callaghan & Co. (1824). 67 RICHARD NEWCOMBE GRESLEY, A TREATISE ON THE LAW OF EVIDENCE IN THE COURTS OF EQUITY 342–-43 (Phila., P.H. Nicklin & T. Johnson 1837).

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decisions on legal and factual issues.68 He has emphasized that few English devices to control

jury findings were used in colonial Massachusetts, thereby giving the jury “vast power to find

both the law and the facts.”69 This development appears consistent with colonial hostility to

chancery courts, which were “closely associated with executive power.”70

C. American Case Law Supports Trial-by-Inspection as a

Forerunner to Today’s Summary Judgment

Nineteenth- and twentieth-century American cases confirm the common law’s use of

trial-by-inspection and prove that some American states continued to utilize this common-law

procedure. Though it is clear that the historical test points back to English common law and not

to American colonial usage,71 there is much to be learned from the available U.S. caselaw

dealing with trial-by-inspection.

In Davison v. Tipton72 the Ohio District Court of Appeals affirmed the trial court’s

determination of lunacy through trial-by-inspection. The court asserted, “At common law in

cases of infancy, lunacy, and other cases, the court might proceed to try the case by inspection

68 WILLIAM NELSON, DISPUTE AND CONFLICT RESOLUTION IN PLYMOUTH COUNTY, MASSACHUSETTS, 1725–-1825, 25–-26 (1981) ( noting that “[o]nce “juries were assembled in court, they exerted immense power over the outcome of cases” and “had effective power to determine the law involved in the cases before them as well as the facts”). 69 WILLIAM NELSON, THE AMERICANIZATION OF THE COMMON LAW 21 (1975). 70 LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 21 (3d ed. 2005). Friedman emphasizes that “[h]ostility to chancery courts was fairly widespread” in the eighteenth century.” Id. 71 See, e.g., Wolfram, supra note 9, at 641 (stating that the right to jury trial “is defined through reference by incorporation to the law of England, not to the law of the United States”). Professor Wolfram relies on Justice Story’s opinion in United States v. Wonson, 28 F. Cas. 745, 750 (C.C.D. Mass. 1812) (No. 16,750), which referred to “the common law of England” as not justifying a second jury trial). Id., at 641. 72 Davidson v. Tipton, 1883 WL 5048, at *1 (Ohio Dist. May 1883).

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and also by the testimony of witnesses.”73 The court of appeals emphasized that the trial judge’s

observation that the lunatic did not answer questions posed to him and it was impossible for the

court to report possible answers the lunatic would give, instead concluded that “Perhaps the

court decided this case altogether upon the appearance and conduct of [alleged lunatic] Davison

in their presence, . . . which they had a right to do.”74

Stewart v. Sholl75 illustrates that older courts understood the constitutional significance of

trial-by-inspection. In Stewart the Georgia Supreme Court upheld the trial court’s use of trial-by-

inspection and rejected the argument that a jury was constitutionally mandated. 76 The issue the

lower court decided by inspection dealt with the validity of a sister-state judgment and the effect

of a clerk’s failure to enter a prior judgment order.77 In upholding the use of trial-by-inspection

the Supreme Court may as well had been justifying summary judgment when it reasoned that

“[t]he office of a jury is to determine disputed matters of fact, and, if there be no matter of fact in

dispute, there is nothing upon which the court is at liberty to invoke the finding of the jury.”78

DeHaven’s Estate79 demonstrates a clear use of trial-by-inspection in a dispute

concerning an alleged alteration of a contested will. The Pennsylvania decision approved the trial

court’s hands-on review of the will and a copy and concluded that “[i]t would appear to be a

73 Id.at *2 (, citing Gray v. State, 4 Ohio 353 (1831) ( deciding color of man’s skin through the use of trial- by-by- inspection)). 74 Id. 75 Stewart v. Sholl, 26 S.E. 757 (1896). 76 Id. at 758. 77 Id. at 757–58. 78 Id. at 758. Accord, Armstrong v. Lewis, 61 Ga. 680, 687–881878 WL 2969 (1878) (authorizing trial- by- inspection rather thanand not by jury as the proper procedure to interpret the validity of a court’s docket records). 79 23 Pa. D. 383, 1914 WL 4439 (Pa. Orph.).

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matter properly to be tried by the inspection of the court, by what Blackstone calls ocular

demonstration.”80

D Trial By Inspection, Viewed in a Flexible Manner, is a

Reasonable Antecedent for Summary Judgment

Summary Judgment opponents might argue that trial by inspection is the “exception that

proves the rule.” Put simply, this argument characterizes trial by inspection as an odd exception

to the norm that the broad universe of cases would be tried to a jury.

This argument ignores the diverse and significant use of trial by inspection. Trial by

inspection was used in cases involving incapacity due to age(infancy), insanity, mayhem(the tort

of severe beating), personal identity and impotency. This laundry list of diverse claims share one

trait, the ability to visually examine evidence and quickly decide the entire case or a critical issue

within a case. Neither the list itself nor the theory of using a visual or ocular examination to save

scarce jury resources is implausible. Indeed, trial by inspection makes sense.

A summary judgment like procedure existed in the historic period that we term “the

common-law.” The fascinating research implication of using trial by inspection to justify

summary judgment’s constitutionality is that prior scholarship dealing with the Seventh

Amendment largely ignores this important procedure. It is interesting to speculate upon reasons

for this glaring omission. I suspect the reason scholars ignore trial-by-inspection lies in its

possible classification as a procedure of evidence law and therefore a mode of trial procedure,

rather than a pre-trial procedure like summary judgment. Evidence law lies in a different subject

80 Id. (citing 3 BLACKSTONE supra note 16, at 331); seeSee, also, Snodgrass v. Bradley, 2 Grant 43, 43 (Pa. 1852 WJ 5621 (1852 Pa.) (citing 3 BLACKSTONE supra note 16, at 332 and, describing the “ancient practice” of trial- court inspection of a party to determine age and noting that “any doubt of the age of the party” may be decided by further proof decided by a jury).

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matter than pre-trial procedure; scholars appear to have focused on procedures other than

evidence when researching the implications of the Seventh Amendment.81

Some may contend that trial by inspection is a mere rule of evidence bearing resemblance

to judicial notice. Although judicial notice and trial by inspection share similar traits---after all

each is decided by a judge---the two procedures are very different. Trial by inspection involves

the judge deciding an issue that may or may not end a case. Consider a breach of contract case

where A pleads that B has breached and B’s answer asserts that A lacked capacity to sue because

he was under the legal age and that B has not breached. Using trial by inspection the trial judge

looks at the plaintiff, decides that he is obviously over the legal age, and strikes the affirmative

defense of incapacity. This ruling by the court, however, fails to end the case because the breach

issue must still be tried to the jury. Such interplay between judge and jury, the hallmark of trial

by inspection and summary judgment, is completely missing from judicial notice, a practice

involving a judge acknowledging the general truth of a particular fact, often on common

knowledge.82

III. Traditional Arguments Support Summary Judgment’s

Constitutionality

A. The Demurrer to the Evidence is a Constitutional Antecedent

Under a Less Rigid, Pragmatic Historical Test

81 See authorities cited in note 6, supra. 82 See Fed Rules Evid. 201 ( stating that a “judicially noticed fact must be…generally known”).

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In Parklane Hosiery Co. v. Shore, Justice Rehnquist’s dissent extended beyond the

confines of the case at hand to justify outright the constitutionality of summary judgment.83 The

tone of Justice Rehnquist’s constitutional approval of summary judgment is confident and terse.

Speaking of the analogous constitutional approval of directed verdict in Galloway v. United

States,84 Rehnquist gratuitously justified summary judgment, a procedure not at issue in

Galloway,85 because “demurrer to the evidence, a procedural device substantially similar to

summary judgment, was a common practice [at common law].”86 The Parklane dissent then

logically connected both summary judgment and directed verdict to demurrer to the evidence by

labeling them “direct descendants of their common law antecedents” that “accomplish nothing

more that could have been done at common law, albeit by a more cumbersome procedure.”87

Justice Rehnquist’s gratuitous summary judgment defense is telling and cannot be dismissed

summarily. His pragmatic reformulation of the historical test bears emphasis. Modern new

procedures need not mirror common law procedures; it is constitutionally sufficient that new

procedures are “direct descendants” of a procedure that was used at common law. His disssent

went on to attack the constitutionality of nonmutual collateral estoppel which he labeled as a

“substantial departure from the common law.”88

Justice Rehnquist’s reasoning merits careful consideration as a major reformulation of the

historical test. He argues that because the Seventh Amendment does not “create” but

83 Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337 (1979) (Rehnquist, J. dissenting). 84 Galloway v. United States, 319 U.S. 372 (1943). 85 Id. at 373. 86 Parklane, 439 U.S. at 348. 87 Id at 350. 88 Id.

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“preserves” the right to jury, the Seventh Amendment requires some type of historical

justification. The strong, pro-jury economic background of the Seventh Amendment’s passage

supports use of a variety of historical test. Yet, the type of historical approach set forth in the

Parklane dissent is neither rigid nor inflexible. There is no clear textualist rule as to what the

Framers meant when they wrote that the right to jury shall “be preserved.” Courts should

approve a new procedure as provided that the modern rule has a “direct” relationship to a device

that existed at common law and is not a “substantial departure” from the analogous common law

antecedent.89

We can only speculate regarding why Justice Rehnquist reached out to defend the

constitutionality of summary judgment, a device not even at issue in Parklane. Perhaps he felt

the need to cabin his ultimate goal in dissenting: to attack the constitutionality of the use of

federal-nonmutual-collateral estoppel. Alternatively, stretching to justify summary judgment

may represent Rehnquist’s best effort to recast a more flexible historical test, one that would

attract other justices to his pro-jury position. Throughout his career at the Supreme Court,

Rehnquist appeared to be a supporter of the jury.90

A traditional defense of summary judgment relies substantially upon Galloway’s holding

justifying the constitutionality of directed verdict. Justice Rutledge selected the demurrer to the

89 Parklane, 439 U.S., at 350. 90 This reputation may be due more to the Rehnquist Court’s Sixth Amendment jurisprudence, particularly Apprendi v. New Jersey, 530 U.S. 466 (2000). See, e.g., John O. McGinnis, Reviving Tocqueville’s America: The Rehnquist Court’s Jurisprudence of Social Discovery, 90 CAL. L. REV. 485, 559–565 (2002). It is noteworthy that Rehnquist voted with the majority in several pro-Seventh Amendment decisions explicitly dealing with right-to-jury methodology but wrote only the Parklane dissent. See, e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 694 (1999) (establishing the right to jury in § 1983 actions); Chauffeurs, Teamsters and Helpers Local No. 391 v. Terry, 518 U.S. 558, 563 (1990) (upholding the union’s right to a civil jury); Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 38 (1989) (reinforcing the right to jury in a bankruptcy context).

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evidence as a reasonable common-law analog to directed verdict.91 The demurrer to the evidence

allowed the trial court to dismiss a claim or defense because of insufficient evidence and allowed

the trial court to consider this evidence, which was assumed to be true. Unlike directed verdict,

however, the moving party for demurrer to the evidence could not present trial evidence if its

motion were denied; if the court ruled for the non-movant, the case terminated.

There is no doubt that demurrer to the evidence differed in major ways to both directed

verdict and summary judgment. A major difference is diminished risk to a summary-judgment

and directed-verdict movant because modern practice permits a losing movant of either motion

to offer additional evidence if the motion is denied. Other important differences exist. The

demurrer to the evidence was a trial motion; summary judgment motions are normally made well

before trial.

To dwell upon the clear differences between directed verdict and demurrer to the

evidence is to miss the message of Galloway. Justice Rutledge’s opinion does not demand a

mirror image between a common law and allegedly analogous modern procedure. Galloway’s

interpretation of the Seventh Amendment requires only the preservation of “jury trial in only its

most fundamental elements, not the great mass of procedural forms and details, varying even

then so widely among common-law jurisdictions.”92 The Rutledge view of common law

procedure was one “constantly changing and developing during the late eighteenth and early

nineteenth centuries,”93 an interpretation that allowed flexibility and latitude when applying his

91 The Galloway decision also rested on the common law use of the motion for new trial as an analogy to the directed verdict. Galloway v. United States, 319 U.S. 372, 390 (1943). 92 Id. at 392. 93 Galloway, 319 U.S. at 391. For an example of such evolutionary change, issues “such as duress, fraud, and illegality, which had once been cognizable only in equity, were familiar defenses to a legal action by the end of the eighteenth century.” FLEMING F. JAMES, JR., GEOFFREY C. HAZARD, JR., & JOHN& J. LEUBSDORF, CIVIL PROCEDURE

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version of the historical approach. This view of the textual reference to the common-law is more

flexible, less rigid, and allows the new procedure the opportunity to change with the pragmatic

needs of modern time As aptly put by Justice McKenna in Fidelity & Deposit Co. v. United

States,94 there is an unambiguous power to change procedural rules used in court and there can

be no “constitutional right to old forms of procedure.” Justice Stone stressed a similar point in

his Dimick v. Schiedt dissent when asserting that “I cannot agree that we are circumscribed by so

narrow and rigid a conception of the common law.”95

The teachings of both Markman v. Westview Instruments, Inc. 96 and Justice Bennnan’s

concurrence in Teamsters Local No.l391 v. Terry 97 support a flexible and utilitarian reading of

the historical test. After failing to find a precise common-law analogy under the historical test,

the Markman decision allocated decisional authority to the judge of the important issue of patent

claim construction on the basis of “functional considerations.”98 Rather than being tied to a rigid

formulaic version of the historical test, the Markman decision was based on whether or not “one

judicial actor is better positioned than another to decide the the issue in question.”99 Similarly the

Brennan Terry concurring opinion backed away from a complicated reading of the historical test

by emphasizing the remedy sought and avoiding literal reliance on the pre-merger nature of the

495 (5th ed. 2001) (citing Walter Wheeler. Cook, Equitable Defenses, 32 YALE L. J. 645 (1923) and emphasizing the overlap between law and equity). 94 Fid. & Deposit Co. v. United States, 187 U.S. 315 (1902). 95 Dimick v. Schiedt, 293 U.S. 474, 495 (1935) (Stone, J. dissenting).). Stone went on to emphasize the common law’s “capacity for growth and development.” Id at 496.. 96 517 U.S.370 (1996). 97 494 U.S. 558 (1990). 98 517 U.S., at 388. 99 Id. ( focusing on the “relative interpretive skills of judges and juries”).

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type of action presented, Brennan properly characterized a search for a pre-1791 historical

antecedent as “rattling through dusty attics of ancient writs” and a task “better left to legal

historians.”100

In short, the prevailing style of interpretation of the Seventh Amendment set forth by a

diverse set of justices over decades--- Brennan, Rehnquist, Rutledge, McKenna, and Stone---

calls for a more pragmatic reading—one that permits procedural innovations that may have

significant distinctions from the historical antecedents used for constitutional justification.101

Viewed from this flexible perspective, trial-by-inspection’s lack of transsubstantivity

appears immaterial. Trial-by-inspection was used in multiple types of cases—proof of age or

incapacity, insanity, mayhem, and personal identity.102 These cases present a diverse set of

claims, including both tort and contract claims. While these causes of action are not

transsubstantive, they are just one step removed from modern summary judgment and should

survive constitutional scrutiny under the more flexible modern approach. The issues resolved by

trial-by-inspection were neither insignificant nor trivial; they were recurring questions of an

important and varied nature, as are the questions resolved today by summary judgment.

100 494 U.S. 558, at 576 ( stressing that judges have “neither the training nor time necessary for reputable historical scholarship”). Accord, Tull v. United States, 481 U.S. 412 (1987) (rejecting an “’abstruse historical” search for the nearest 18th-century analogue, citing Ross v. Bernhard, 396 U.S. 531, 548) (Brennan, J.). 101 See generally, William Nelson, Summary Judgment and the Progressive Constitution, 93 IOWA L. REV. ______(2008) (calling for a progressive interpretation of the Constitution); Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1738 (2007) (explaining the history of the living, flexible Constitution); Rachael E. Schwartz, “Everything Depends on How You Draw the Lines:” An Alternative Interpretation of the Seventh Amendment,6 Seton Hall Const. L.J. 599, 603 (1996) (explaining that “when the Seventh Amendment dictated that the right to civil jury trial was preserved, it meant that it was not abolished”). William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693 (1976) (cataloging materials expressing a variety of opinions on a “living Constitution”). 102 See supra Part II.A.

27

A more pragmatic interpretation of the Seventh Amendment should embrace the

collateral effects doctrine. Under this approach, a court would uphold a modern procedure not

used in 1791 if it varies its historical antecedent only in collateral or incidental ways.103 In

Galloway, the Court held that the methods of jury regulation that did exist in 1791, new trial and

demurrer to the evidence, were different from directed verdict in only a collateral manner.

The main distinction between directed verdict and summary judgment is that of timing, or when

the motion is made. Demurrer to the evidence and directed verdict are trial procedures and

summary judgment is a pretrial mechanism. Nonetheless, a summary judgment should pass

constitutional muster provided the differences between the summary judgment and its historical

antecedents are collateral. The timing distinction, while certainly not trivial, is incidental to the

basic idea of allowing the trial judge to decide obvious facts. The historic validity of the motion

for new trial, which allows the judge to decide the sufficiency of the evidence and permits the

successful movant to introduce new evidence at a new trial, supplements the appropriateness of

the demurer to the evidence as a historical antecedent. The new trial prove that the common-law

used a procedure that did not always assume that the nonmovant’s evidence was assumed to be

true.104

The timing distinction between summary judgment and demurrer to the evidence is

mitigated by proper judicial construction of Rule 56(f)105 which constitutes an important

103 See Galloway, 319 U.S., at 390 (stating that directed verdict may differ from its historical antecedents in ”incidental or collateral effects”). 104 Id, at 393-94 (stating that the “admitted validity of the practice on the motion for new trial goes far” and serves to “negative any idea that the challenge must be made at such a risk as the demurrer imposed”). In the common-law use of the motion for new trial the trial judge would determine the sufficiency of the evidence. Thomas, supra note 6 at 172( admitting that summary judgment “is not significantly different”). 105 FED. R. .CIV. P. 56(f) (detailing the requirements for delaying summary judgment consideration).

28

safeguard against early and erroneous grants of summary judgment. Courts, motivated by Justice

Rehnquist’s Celotex Corp. v. Catrett106 opinion, have taken great care to prevent the nonmovant

from unfairly timed summary judgment motions. The Celotex opinion noted that no claim could

be made that the nonmovant had been “‘railroaded’” by a “premature” Rule 56 motion and

approved of the use of Rule 56(f) time-outs to deal with early summary judgment requests.107

Proper interpretations of Rule 56(f) make the timing distinction between summary judgment and

demurrer to the evidence less severe and softened.108 The nonmovant who is faced with an early

summary judgment motion is entitled to extra time and reactive discovery if needed.

Appellate review of motions granting summary judgment provides a second safeguard to

check overly zealous district judges who erroneously find no genuine issues of material fact. All

circuits use a robust de novo scope of review when reviewing a grant of summary judgment.109

This broad scope of review casts a large shadow over trial court summary judgment

consideration---some district judges are deterred from granting summary judgment because of

fear of reversal. Most federal circuits have decided lengthy “affirmed in part, reversed in part”

opinions that (a) exhibit hands on, detailed appellate review and (b) deter trial courts from overly

enthusiastically embracing a motion for summary judgment in today’s typical multi-claim

106 Celotex Corp. v. Catrett, 477 U.S. 317 (1986). 107 Id. at 318. 108 See, e.g., Miller v. Beneficial Mgmt. Corp., 977 F. 2d 834, 845 (3d Cir. 1992) (allowing Rule 56(f) continuance as a matter of course when the moving party holds the evidence); Int’l Shortstop, Inc., v. Rally’s, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991) (granting the nonmovant additional time under Rule 56(f) because “the district court should be generous in its allowance of discovery requests aimed at uncovering . . . state of mind”). 109 See, e.g., Disreali v. Rotunda, 489 F. 3d 628, 631 (5th Cir, 2007) (stating that “we review a district court’s grant or denial of summary judgment denovo, applying the same standard as the district court”); Boumedhi v. Plastag Holdings, LLC, 489 F. 3d 781, 787 (7th Cir. 2007) (explaining that the appellate “Court reviews a district court’s entry of summary judgment de novo”);

29

suit.110 Although elimination of district court error is impossible to avoid, diligent de novo

appellate review serves to safeguard and minimize improper grants of summary judgment

B. The Evolving and Competitive Common-Law Supports a

The mo f the evolving

commo

ficient procedures such as summary judgment is a

direct d

ased upon a utilitarian rationale

of n

l

Modern Interpretation of the Seventh Amendment

re flexible interpretation of the historical test is itself a descendent o

n-law. Examination of the common-law’s changes reveals a link to using a less rigid

reading of the Seventh Amendment. The pre-1791 period saw consistent tinkering with

procedures to make the courts more efficient.

The modern emphasis on developing ef

escendent of the attitude demonstrated before 1791.111 The common law’s development

of the writ system was designed to establish an efficient set of legal rules. The goal was to set

forth predictable patterns that provided transparent results.112

Pre-1791 English courts consistently modified procedures b

eed. Milsom chronicles “a need for quicker and cheaper justice”113 and emphasizes need to

adjust to the increase in court filings. 114 Common law courts constantly tinkered with procedura

110 See, e.g., Skop v. City of Atlanta, Ga., 485 F. 3d 1130 ( 11th Cir. 2007) (affirming in part and reversing in part a 1983 false arrest case involving qualified immunity); Vincent v. City Colleges of Chicago, 485 F. 3d 919 (7th Cir.

ered Common Law: The Federal Rules of Civil Procedure in istorical Perspective, 135 U. PA. L. REV. 909, 921 (1989) (asserting that “a goal of the common law was

9)

2007 ) (affirming in part and reversing in part a copyright and trademark infringement claim); Jordan v. Mosley, 487F. 3d 1350 (11th Cir. 2007) ( affirming denial of summary judgment in 1983 claim but reversing denial of summaryjudgment on plaintiff’s Fourth Amendment claim). 111 See supra notes 17–21 & accompanying text. 112 See, e.g., Stephen N Subrin, How Equity ConquHpredictability by identifying fact patters that would have clearly articulated consequences”). 113 S.F.C. MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW 61 (1969). 114 S.F.C. MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW 58–-61 (196

30

changes to improve their case administration.115 For example, Milsom emphasizes the common

law’s evolution to ascertain the facts early in a dispute.116 This development permitted a dispute

to be analyzed more effectively with the factual details depicted in one single package. Baker

chronicles the passage by King’s Bench of a cost saving Chancery-like bill not tying the plaintif

to any particular cause of action.

f

edures took away power from the jury and allocated

dec

ed

l

hich he

described procedure as “constantly changing and developing during the late eighteenth and

117

Some common law efficiency proc

isional authority to experts. Consider the common law development of the special jury.

Professor Oldham describes the extensive use of common-law “special juries—specially form

juries usually comprised of merchants, available to either litigant as a ‘matter of right’”118 The

judge’s appointment of a special jury instantly transformed a case from one tried to a jury to one

decided by an expert panel. The growth of the special jury, developed by Lord Mansfield,119

essentially removed the case from the jury and placed key decisional power in the hands of

merchant experts appointed by the trial court. Professor Oldham notes that the merchant jury

was used effectively by Lord Mansfield in the “second half of the eighteenth century,” a critica

time for any English procedure that removed or reduced jury decisional powers.

Justice Rutledge emphasized this evolutionary theme in his Galloway opinion in w

115 See, e.g., id. at 73 (detailing that sixteenth- century procedures were “gradually to be replaced by new devices already coming into use”). 116 Id.., at 80. 117 J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 42–43 (4th ed. 2002 (describing the adoption of the latitat and noting its similarity to Chancery procedure). 118 See Oldham, supra note 8 at 22; See also James Oldham, The Varied Life of the Self-Informing Jury 25(2004) (clarifying that there “was no entitlement to a jury of merchants”). 119 See James Oldham, The Varied Life of the Self-Informing Jury 23-28 (2004) (noting that merchant juries were “used so effectively by Lord Mansfield”).

31

nineteenth centuries.”120 Some of these changes, namely the development of rules of eviden

and new trial, also took decisional power away from the jury and reallocated it to the trial

court.

ce,

ne

d

l decisions for jury determination. Galloway asserted that the “jury was not

absolut

e

icki paints a picture of the

commo s.124

121 Such changes support the need for efficacious procedures, such as summary judgment,

and create a common-law evolutionary trend for new procedures that improve and streamli

factfinding.

The common-law’s development of evidence rules shows a climate of change that coul

substitute judicia

e master of fact in 1791” and offered the “exclu[sion of] evidence for irrelevancy and . . .

for other reasons”122 as an example of 1791 procedure that clearly diminished the power of th

jury. The rule granting the trial judge discretion to bar evidence that would confuse the trier of

fact illustrates that point.123 Before the adoption of this centuries-old norm, the jury would hear

potentially unhelpful evidence. In developing this rule, the court itself reduced jury powers by

prohibiting evidence that a judge determined to be unhelpful.

The history of the common-law tells a story of competition among courts and of

competitive rivalry based on procedural innovation. Todd Zyw

n-law courts as part of a “competitive legal order” competing for business and fee

Theodore Plucknett describes “competition between the King’s Bench, Common Pleas and

120 Galloway v. United States, 319 U.S. 372, 391 (1943). 121 Id., at 390.

2 Galloway, 319 U.S. at 390.

3 See FED. .R. EVID. 403 (“Although relevant, evidence may be excluded if its probative value is substantially fair prejudice, confusion of the issues, or misleading the jury, or by considerations of

ndue delay, waste of time, or needless presentation of cumulative evidence.”).

12

12

outweighed by the danger of unu 124 Zywicki, supra note 1, at 1581-91 (describing the overlapping jurisdiction of courts and dependence on fees for cases and explaining a market for law that includes multiple suppliers).

32

Exchequer.”125 English courts adjusted procedurally when confronted with falling demand.126 In

this culture of evolution it seems illogical to interpret the Seventh Amendment narrowly.

IV. Conclusion

Summary judgment is constitutional. First, trial-by-inspection is a common-law

procedure analogous to summary judgment. Each procedure permits the court to decide a

determ ce

he

describes trial-by-inspection in a way that appears to confirm its use in the eighteenth

century

rn interpretation of the historical test also facilitates the constitutionality of

summa

y

summary judgment under a more flexible “pragmatic” interpretation of the Seventh Amendment.

inative factual issue without impaneling a jury where the correct result. Each devi

would reject its use where there was judicial doubt after a careful inspection or review of t

evidence.

The historical support for the common law’s use of trial-by-inspection appears strong.

Blackstone

. Coke’s earlier explanation of trial-by-inspection sets forth a procedure similar to that

delineated by Blackstone. Case law paints a largely consistent picture of pre-trial use of this

device that empowered the court to take away issues that otherwise would be allocated to the

jury for decision.

Trial-by-inspection alone makes summary judgment constitutional. However, a more

enlightened, mode

ry judgment. Common-law history supports the use of the doctrine of collateral or

incidental effects. Viewed in a broader context, demurrer to the evidence, while admittedly

varying in major ways from summary judgment, is an analogous and incidental fit to justif

125 THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 210 (5th ed. 1956). 126 See, e.g., BAKER, supra note 1, at 43 (describing falling share of market for writs).

33

34

ing

r of

The lens through which the historical test is applied should shift to one characterized by the

utilitarian, instrumental analysis adapted “at common law” by busy judges unable and unwill

to send every sort of issue to the jury. Trial-by-inspection, concern for efficiency and expertise in

the growth of legal procedure, and the development of evidence rules each reduced the powe

the jury without substantially damaging the institution of the jury itself. Accordingly, summary

judgment is constitutional under a proper, more practical “incidental effects” version of the

historical test.

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139

ESSAY

WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL

Suja A. Thomas!

UMMARY judgment is cited as a significant reason for the dra-matic 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 Su-preme Court has held that “common law” in the Seventh Amend-ment refers to the English common law in 1791. This Essay demon-strates that no procedure similar to summary judgment existed under

S

! Professor, University of Cincinnati College of Law. J.D., New York University School of Law; B.A., Northwestern University. I am grateful for the comments of the following individuals: Louis Bilionis, Stephen Burbank, Paul Caron, Gabriel Chin, Ruth Colker, Rafael Gely, Benjamin Glassman, Hrishi Karthikeyan, Jayanth Krish-nan, Arthur Miller, William E. Nelson, James Oldham, Robert Rasmussen, Paul Saunders, Michael Solimine, Adam Steinman, Jay Tidmarsh, Michael Van Alstine, Renjit Varghese, Neil Vidmar, Kristin Woeste, and the Virginia Law Review editors. Thanks also to Tod Thompson and Ali Razzaghi for their excellent work conducting research and drafting portions of this Essay when they were respectively students at the University of Cincinnati. Finally, thanks to the Harold C. Schott Foundation for its generous research support.

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140 Virginia Law Review [Vol. 93:139*

the English common law and also reveals that summary judgment violates the core principles or “substance” of the English common law. The Essay concludes that, despite the uniform acceptance of the device, summary judgment is unconstitutional. The Essay then re-sponds to likely objections, including that the federal courts cannot function properly without summary judgment. By describing the burden that the procedure of summary judgment imposes upon the courts, the Essay argues that summary judgment may not be neces-sary to the judicial system but rather, by contrast, imposes significant costs upon the system.

INTRODUCTION

Summary judgment is unconstitutional. I understand that this as-sertion 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.

A large number of civil cases do not move beyond discovery without at least one motion for summary judgment from the defen-dant. Summary judgment has been described as “probably the single most important pretrial device used today,”1 and as “the only viable postpleading protector against unnecessary trials.”2 Indeed, the ex-tensive use of summary judgment is cited as a significant reason3 for

1 Edward Brunet et al., Summary Judgment: Federal Law and Practice 2 (3d ed. 2006).

2 Martin H. Redish, Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 Stan. L. Rev. 1329, 1339 (2005).

3 See, e.g., Stephen B. Burbank, Vanishing Trials and Summary Judgment in Fed-eral Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. Empirical Legal Stud. 591, 592 (2004). In discussing the well-known trilogy of Supreme Court cases regarding summary judgment that were decided twenty years ago, Professor Redish recently stated that these “[c]hanges in the law of summary judgment quite probably explain at least a large part of the dramatic reduction in federal trials.” Redish, supra note 2, at 1330; cf. Adam N. Steinman, The Irrepressible Myth of Celotex: Reconsid-ering Summary Judgment Burdens Twenty Years after the Trilogy, 63 Wash. & Lee L. Rev. 81, 82, 86–88, 143–44 (2006) (presenting data that demonstrates that federal courts cite the trilogy of cases on summary judgment more often than any other cases). But see Burbank, supra, at 620–21 (arguing that the effect of summary judg-ment on the decline of trials did not begin with the trilogy but rather began earlier in the 1970s); Joe S. Cecil et al., A Quarter Century of Summary Judgment Practice in

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2007] Why Summary Judgment Is Unconstitutional 141*

the dramatic decline in the number of jury trials in civil cases in the federal courts.4

This use of summary judgment has caused noteworthy debate. A group of scholars has argued that judges overuse summary judg-ment, especially in civil rights cases.5 Other scholars, in contrast, have argued that courts should increase their use of summary judgment, instead of encouraging settlement to dispose of these cases.6 This debate is incomplete, however, because it assumes away the most fundamental question about the use of the proce-

Six Federal District Courts, Oct. 25, 2006, http://papers.ssrn.com/sol3/papers.cfm? abstract_id=914147 (discussing empirical evidence that shows the trilogy has not in-creased the grant of summary judgment to the extent scholars have previously stated).

4 “In the fiscal year ending two months before the Federal Rules of Civil Procedure took effect in 1938, 19.9% of cases terminated by trial. In 1952, the trial rate for all civil cases was 12.1%. In 2003, only 1.7% of civil terminations occurred during or after trial.” Marc Galanter, The Hundred-Year Decline of Trials and the Thirty Years War, 57 Stan. L. Rev. 1255, 1258–59 (2005) (footnote omitted). These figures include trials before both judges and juries. See id; cf. Judith Resnik, Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts, 1 J. Empirical Legal Stud. 783 (2004) (discussing competing explanations of the de-cline in trials). But see Brian N. Lizotte, Publish or Perish: The Electronic Availability of Summary Judgment Grants from Eight District Courts, 2007 Wisc. L. Rev. (forth-coming), available at http://ssrn.com/abstract=912284 (arguing that the data used in empirical studies of summary judgment have significant inadequacies and urging more study with better data).

5 See, e.g., Theresa M. Beiner, The Misuse of Summary Judgment in Hostile Envi-ronment Cases, 34 Wake Forest L. Rev. 71, 71 (1999); Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34 Harv. C.R.-C.L. L. Rev. 99, 101–02 (1999); Ann C. McGinley, Credulous Courts and the Tortured Trilogy: The Im-proper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. Rev. 203, 206–07 (1993); cf. Rebecca Silver, Comment, Standard of Review in FOIA Ap-peals and the Misuse of Summary Judgment, 73 U. Chi. L. Rev. 731, 757 (2006) (argu-ing that summary judgment may be overused in FOIA cases). In Kampouris v. St. Louis Symphony Society, in his dissent, Judge Mark W. Bennett posed the issue of “the expanding use of summary judgment, particularly in federal employment dis-crimination litigation” and its “ominous specter of serious erosion of the ‘fundamental and sacred’ right of trial by jury.” 210 F.3d 845, 850 (8th Cir. 2000) (Bennett, J., dis-senting). Judge Bennett, sitting by designation on the Eighth Circuit, disagreed with the decision of the majority that the district court properly granted summary judg-ment for the defendant in a case in which the plaintiff had alleged a violation of the Americans with Disabilities Act. Id. For a discussion of the increased use of summary judgment to dismiss antitrust cases, see Peter D. Ehrenhaft, Is Interface of Antidump-ing and Antitrust Laws Possible?, 34 Geo. Wash. Int’l L. Rev. 363, 390 (2002).

6 See Randy J. Kozel & David Rosenberg, Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment, 90 Va. L. Rev. 1849 (2004); Jonathan T. Molot, An Old Judicial Role for a New Litigation Era, 113 Yale L.J. 27, 43–46 (2003).

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142 Virginia Law Review [Vol. 93:139*

dure: whether summary judgment is constitutional at all. In this Es-say, I examine the constitutional propriety of the device. I conclude that summary judgment should be eliminated altogether because it is unconstitutional under the Seventh Amendment.7

The Seventh Amendment 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.”8 The Supreme Court has definitively stated that the “common law” in the Seventh Amendment is the English common law in 1791, when the Amendment was adopted,9 and that a new procedure will be constitutional under the Seventh Amendment if the procedure satisfies the substance of the English common law jury trial in 1791.10 The Court has never described, however, what constitutes the substance of the common law jury trial. Instead, it has exam-ined various common law procedures individually in attempts to compare those procedures to new procedures.11

In failing to examine appropriately the relevant history, the Su-preme Court has upheld every new procedure that it has consid-ered by which a court removes cases from the determination of a jury before, during, or after trial.12 Under the governing English

7 Some scholars who generally support the use of summary judgment in federal court have assumed that the device is constitutional. See, e.g., Molot, supra note 6, at 44. Others have acknowledged possible problems with some applications of the pro-cedure, without any significant reference to the governing common law. See, e.g., Brunet et al., supra note 1, at 16 (stating that summary judgment rests on “potentially tenuous constitutional foundation”); Arthur R. Miller, The Pretrial Rush to Judg-ment: Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency Clichés Erod-ing Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. Rev. 982, 1074–1132 (2003) (discussing possible problems with procedure’s constitutionality); cf. Patricia M. Wald, Summary Judgment at Sixty, 76 Tex. L. Rev. 1897, 1945 (1998) (“In sixty years summary judgment has grown from a wobbly infant to an aggressive gate-keeper to access to trial—by jury or otherwise. We need to ensure it does not exceed whatever role we want it to play, and to carefully define that role.”). One scholar, Ellen Sward, has discussed modern procedures and their inconsistency with the com-mon law. Ellen E. Sward, The Seventh Amendment and the Alchemy of Fact and Law, 33 Seton Hall L. Rev. 573 (2003).

8 U.S. Const. amend. VII (emphasis added). 9 See infra note 25. 10 Id. 11 See, e.g., infra Subsection II.B.2. 12 See Suja A. Thomas, The Seventh Amendment, Modern Procedure, and the Eng-

lish Common Law, 82 Wash. U. L.Q. 687, 695–702 (2004).

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2007] Why Summary Judgment Is Unconstitutional 143*

common law, however, a jury would have decided these very same cases that are being decided by judges today, including cases dis-missed by judges upon summary judgment.13

Indeed, the substance of the common law is surprisingly clear.14 First, under the common law, the jury or the parties determined the facts. One party could admit the allegations or the conclusions of the evidence of the other party, or the parties could leave the determination of the facts to the jury. A court itself never decided the case without such a determination by the jury or the parties, however improbable the evidence might be. Second, only after the parties presented evidence at trial and only after a jury rendered a verdict, would a court ever determine whether the evidence was sufficient to support a jury verdict. If the court decided that the evidence was insufficient to support the verdict, it would order a new trial. Another jury would determine the facts and decide which party won. In other words, if the court itself believed the evi-dence was insufficient, it would never determine who should win. Third, a jury would decide every case in which there was any evi-dence, however improbable the evidence was, unless the moving party admitted the facts and conclusions of the nonmoving party, including the improbable facts and conclusions.

These core principles of the common law reveal that summary judgment is unconstitutional. Under summary judgment, a court decides whether a “genuine issue as to any material fact” exists15 or, in other words, whether “a reasonable jury could return a verdict for the nonmoving party.”16 Under this standard, in contrast to un-der the common law, the court decides whether factual inferences from the evidence are reasonable, applies the law to any “reason-able” factual inferences, and as a result makes the determination as to whether a claim could exist. In other words, the court decides whether the case should be dismissed before a jury hears the case. Under the common law, a court would never engage in this deter-mination. Cases that would have been decided by a jury under the common law are now dismissed by a judge under summary judg-ment.

13 See infra Section I.B; Thomas, supra note 12, at 704–48. 14 See infra Section I.B. 15 Fed. R. Civ. P. 56(c). 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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Contrary to a common assumption, the Supreme Court has never decided this issue of the constitutionality of summary judg-ment. For years, the Court and scholars have cited the now cen-tury-old Fidelity & Deposit Co. v. United States17 for the proposition that summary judgment is constitutional under the Seventh Amendment.18 The procedure held constitutional in Fidelity, how-ever, was not the same nor even similar to summary judgment un-der Rule 56. Under the procedure in Fidelity, the court accepted the facts alleged by the nonmoving party as true. Under summary judgment, in contrast, the court does not accept the facts of the nonmoving party as true but instead determines whether the evi-dence of the nonmoving party is sufficient.

How, then, did the constitutionality of summary judgment be-come so widely accepted by courts? I will argue that there are legal and institutional reasons for the acceptance and use of summary judgment by the courts. First, the failure of the Supreme Court to state what constitutes the substance of the common law has led the Court to move away from the common law and thus to the drastic change from the role of the jury as decision-maker under the com-mon law to the role of the judge as decision-maker under summary judgment. Second, an idea prevails that the federal courts cannot function effectively without summary judgment. I argue that the necessity of summary judgment to the proper functioning of the federal courts has been overstated; indeed, summary judgment mo-tions themselves are a significant burden on the federal courts.

In Part I of this Essay, I will demonstrate why summary judg-ment is unconstitutional. I begin with an explanation of the Su-preme Court’s jurisprudence on the Seventh Amendment, under which the Court has stated that the constitutionality of new proce-dures should be evaluated by comparison of those procedures to the substance of the English common law jury trial in 1791. I then describe the three core principles that emanate from the common law jury trial procedures. Next, I examine those common law pro-cedures, which include the demurrer to the pleadings, the demurrer to the evidence, the nonsuit, the special case, and the new trial, and show that these procedures contrast with summary judgment. I

17 187 U.S. 315 (1902). 18 See infra note 96.

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2007] Why Summary Judgment Is Unconstitutional 145*

then demonstrate that summary judgment violates the core princi-ples or substance of the common law jury trial procedures, and I conclude that summary judgment is therefore unconstitutional. Part II will examine and reject the twentieth-century justifications for summary judgment. These justifications range from the argu-ment that a court decides only law under summary judgment to the argument that the issue has already been decided by the Supreme Court to the argument that summary judgment is necessary to the proper functioning of the federal courts. In the Conclusion, I con-trast the Court’s jurisprudence on the civil jury under the Seventh Amendment with its jurisprudence on the criminal jury under the Sixth Amendment. In deciding that the criminal jury, rather than the judge, must decide facts that influence sentencing, the Court has emphasized the relevance of the power of the common law jury.19 The Court has done so even though the text of the Sixth Amendment does not specifically mandate adherence to the “common law.”20 I argue that the Court should likewise follow the common law with respect to its jurisprudence on the Seventh Amendment, which indeed mandates adherence to the “common law,” and in doing so, the Court should declare summary judgment unconstitutional.

I. SUMMARY JUDGMENT IS UNCONSTITUTIONAL UNDER THE SEVENTH AMENDMENT

Under summary judgment, a court enters judgment for the mov-ing party “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”21 The Supreme Court has interpreted this rule to require that summary judgment is appropriate when “a reasonable jury could [not] return a verdict for the nonmoving party.”22 In making this determination,

19 See infra note 169. 20 U.S. Const. amend. VI. 21 Fed. R. Civ. P. 56(c). 22 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Sartor v. Ark.

Natural Gas Corp., 321 U.S. 620, 623, 627–28 (1944) (discussing summary judgment standard and holding that summary judgment is not appropriate under the evidence even though “[i]t may well be that the weight of the evidence would be found on a

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a court considers the entire record in the light most favorable to the nonmoving party and draws only the “reasonable inferences [from the evidence] in favor of the nonmovant.”23 If the court de-cides that a reasonable jury could not find for the nonmoving party, the court enters judgment for the moving party. If the court decides that this standard is not met—in other words, that a rea-sonable jury could find for the nonmoving party—then the case proceeds to a trial before a jury.

A. The Seventh Amendment and the Common Law

The constitutionality of summary judgment 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.”24 In its de-cisions interpreting the Seventh Amendment, the Supreme Court has stated that “common law” in the Seventh Amendment refers to the English common law in 1791, the year when the Amendment was adopted.25 According to the Court, the Amendment does not

trial to be with defendant”); 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2725, at 401–40 (3d ed. 1998).

23 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149–50 (2000). 24 U.S. Const. amend. VII (emphasis added). 25 See, e.g., Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435–36 & n.20

(1996); Markman v. Westview Instruments, 517 U.S. 370, 376 (1996); Galloway v. United States, 319 U.S. 372, 388–92 (1943); Balt. & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935); Dimick v. Schiedt, 293 U.S. 474, 476–77 (1935); Gasoline Prods. Co. v. Champlin Ref. Co., 283 U.S. 494, 497–98 (1931); Slocum v. N.Y. Life Ins. Co., 228 U.S. 364, 377 (1913). Recently, the Court decided that an appellate court could not review the sufficiency of the evidence and order a new trial where the party who had lost had failed to move for a new trial or judgment notwithstanding the ver-dict after the jury verdict. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 126 S. Ct. 980, 989 (2006). In a footnote, the Court suggested that the arguments of the dissent might be problematic under the Seventh Amendment because of the requirement to follow “the rules of the common law.” Id. at 986–87 n.4. In the early nineteenth cen-tury, following the adoption of the Amendment, Justice Story, while referring to the English common law as “the grand reservoir of all our jurisprudence[,]” stated that it was “obvious to every person acquainted with the history of the law” why the com-mon law in the Seventh Amendment was the English common law. United States v. Wonson, 28 F. Cas. 745, 750 (C.C.D. Mass. 1812) (No. 16,750); see also Thompson v. Utah, 170 U.S. 343, 350 (1898) (stating that common law refers to English common law in 1791).

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require that the common law is “fixed”26 or that, in other words, the “form”27 of the common law is preserved. Instead, the Amendment requires that the “substance”28 of the English common law in 1791 must be satisfied.29 Thus, a new procedure is constitutional if it sat-isfies the substance of the English common law jury trial in 1791.30 The Court has not, however, defined what constitutes the sub-stance of the English common law jury trial in 1791. Instead the Court has individually compared various common law procedures to modern procedures.31 Under this approach, the Court has ap-proved every procedure that it has considered that removes cases from juries, before, during, or after trials, even though such proce-dures did not exist under the English common law.32

While the Court has not endeavored to set forth the substance of the common law jury trial, an examination of the common law demonstrates that this substance, or the core principles, of the common law is quite clear. First, as explained in Section I.B, below, under the common law, the jury or the parties determined the facts. One party could admit the allegations or the conclusions of

26 Gasperini, 518 U.S. at 436 n.20. 27 Gasoline Prods., 283 U.S. at 498. 28 Id.; see also, e.g., Colgrove v. Battin, 413 U.S. 149, 157–60 (1973); Galloway, 319

U.S. at 392. 29 The Supreme Court has applied this test to the interpretation of both the first and

second clauses of the Seventh Amendment. “[I]n the interpretation of the first clause of the Amendment, the Court has permitted the trial by jury in a broad set of cases including cases with legal remedies, cases that involve new causes of action and cases which involve both legal and equitable claims.” Suja A. Thomas, Judicial Modesty and the Jury, 76 U. Colo. L. Rev. 767, 801 (2005). In these decisions, the Court “gen-erally appears to have exercised some modesty by narrowly construing the judiciary’s power in relationship to the jury’s power.” Id. The Court’s interpretation of the first clause of the Amendment contrasts with its immodest interpretation of the second clause. See id. at 801–04.

30 There has been scholarly criticism of the historical test. See, e.g., James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 6 (2006) [hereinafter Oldham, Special Juries] (citing as an example Martin Redish’s criticism of the test). Despite this criticism, the Court continues to state that the historical test should be followed.

31 See, e.g., infra Subsection II.B.2. 32 See Thomas, supra note 12, at 695–702. One might argue that summary judgment

is unconstitutional simply on the basis that the right to a jury trial has been denied under the first clause of the Amendment. In other words, once a jury trial right exists, the case must be tried before a jury. Under the second clause of the Amendment, a judge can examine facts once tried by a jury and then only according to common law rules.

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the evidence of the other party, or the parties could leave the de-termination of the facts to the jury. A court itself never decided the case without a determination of the facts by the parties or the jury, however improbable the evidence might be. Second, only after the parties presented evidence at trial and only after a jury rendered a verdict, would a court ever determine whether the evidence was sufficient to support a jury verdict. Where the court decided that the evidence was insufficient to support the verdict, the court would order a new trial. Another jury would determine the facts and decide which party won. The court itself would never deter-mine who should win if it believed the evidence was insufficient. Third, a jury would decide a case with any evidence, however im-probable the evidence was, unless the moving party admitted the facts and conclusions of the nonmoving party, including the im-probable facts and conclusions.

B. The Conflict Between the Common Law and Summary Judgment

In its decisions regarding the constitutionality of modern proce-dures under the Seventh Amendment, the Supreme Court has ex-amined procedures under the English common law and made inac-curate comparisons between the English procedures and the modern procedures. Below, I examine the English common law procedures of the demurrer to the pleadings, the demurrer to the evidence, the nonsuit, the special case, and the new trial. I demon-strate that each of the common law procedures is fundamentally different than summary judgment. I then show that summary judgment conflicts with the core principles or the “substance” of the common law procedures.

1. Demurrer to the Pleadings and Summary Judgment

Demurrer to the pleadings is arguably the procedure that is most relevant to the summary judgment constitutionality analysis, be-cause it was the only pretrial common law device by which a case would be dismissed before trial.33 In other words, “[there was no]

33 See Oldham, Special Juries, supra note 30, at 10; James Oldham, The Seventh Amendment Right to Jury Trial: Late-Eighteenth-Century Practice Reconsidered, in Human Rights and Legal History: Essays in Honour of Brian Simpson 225, 231

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procedure (other than the demurrer) that would allow a judge to determine before trial that a case presented no issue to be decided by a jury, or that an issue in a case should be withheld from the jury.”34 Under the English common law, a demurrer to the plead-ings allowed the court to enter judgment for one of the parties upon a party’s admission of the truth of the plea or declaration of the opposing party.35 Upon such admission, the demurring party argued that he was entitled to judgment under the law.36 If he was correct, the court would enter judgment for that party.37 If the de-murring party was incorrect, then the other party received judg-ment.38

Under both summary judgment and the common law demurrer to the pleadings, cases are dismissed prior to the trial. The proce-dures do not otherwise share any significant characteristics, how-ever. Under summary judgment, the judge considers the evidence of both the moving and nonmoving parties. Under demurrer to the pleadings, the court considered only the facts alleged by the oppos-ing party.

Also, under summary judgment, considering both the evidence of the moving party and the nonmoving party, the judge decides whether a reasonable jury could find for the nonmoving party. Un-der the common law, by contrast, the court conducted no such rea-sonableness analysis of all of the evidence. Instead, the demurring party admitted the facts alleged by the opposing party and the court decided only if there was a claim or defense under those facts.

Summary judgment and demurrer to the pleadings also differ as to the respective effect each procedure has on the pending litiga-tion. Under summary judgment, if the judge rules in favor of the nonmoving party, the case proceeds to trial. Under the demurrer to the pleadings, if the court ruled for the opposing party, the case ended and did not proceed to trial. There, because the demurring

(Katherine O’Donovan & Gerry R. Rubin eds., 2000) [hereinafter Oldham, Right to Jury Trial].

34 Oldham, Right to Jury Trial, supra note 33, at 231. 35 See William Blackstone, 3 Commentaries on the Laws of England *314–15 (1768). 36 Id. 37 Id. 38 Id. For a more extensive description of this procedure, see Thomas, supra note 12,

at 706–07.

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party had admitted the facts alleged by the nonmoving party, the opposing party was entitled to judgment under those admitted facts.39

In addition to the specific differences between summary judg-ment and demurrer to the pleadings, summary judgment conflicts with the core principles or the substance of the common law, as re-flected in the common law demurrer to the pleadings. The main difference between summary judgment and the demurrer to the pleadings is the role that the court plays in the decision whether to dismiss a case. While under summary judgment, the judge exam-ines the sufficiency of the evidence and may dismiss a case for in-sufficient evidence, under the common law, no comparable proce-dure existed whereby the court dismissed a case based on a determination by the court that the evidence was insufficient. Un-der the common law, the court did not determine whether a rea-sonable jury could find for the opposing party. Rather, the court became involved prior to trial only upon the admission by the de-murring party of the truth of the plea or declaration of the oppos-ing party. The court applied only the law to the alleged facts and did not balance the sufficiency of the parties’ evidence. Thus, summary judgment differs from the first core principle of the common law, as illustrated here by the demurrer to the pleadings. Under the common law, the jury or the parties determined the facts. A court itself never decided the case without a determination of the facts by the jury or the parties.40

2. Demurrer to the Evidence and Summary Judgment

Summary judgment also contrasts with a common law procedure called the demurrer to the evidence, a motion that was made dur-ing a jury trial. Under the common law demurrer to the evidence, the demurring party admitted the truth and conclusions of the evi-dence that the opposing party presented during the trial and re-

39 While this discussion may imply that the motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be unconstitutional, my analysis of the common law does not suggest this result. Under the core principles or the substance of the common law, a motion to dismiss would be constitutional because the moving party admits the alleged facts before the moving party may obtain judgment from the court.

40 See supra and infra Section I.B.

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quested judgment on that evidence.41 The court accepted as true any fact or conclusion to be drawn from the opposing party’s evi-dence, whether such fact or conclusion was “probable or not.”42 “Whether probable or not, [was] for a jury to decide.”43 In describ-ing this standard for the demurrer to the evidence in Gibson v. Hunter, the House of Lords, the supreme judicial body of England, stated that where a “matter of fact be uncertainly alleged, or that it be doubtful whether it be true or no, because offered to be proved by presumptions or probabilities” the demurring party cannot re-ceive judgment “unless he will confess the matter of fact to be true.”44 The court determined whether a claim or defense existed under the law based on those admitted facts.45 If no claim or de-fense existed, the demurring party received judgment.46 If, on the other hand, a claim or defense existed, the court entered judgment for the opposing party, because the demurring party had admitted the truth and conclusions of the opposing party’s evidence.47

Under the demurrer to the evidence, a court removed issues of fact from the jury’s consideration, not because the court deter-mined that there were none, but because the demurring party ad-mitted the facts and conclusions of the opposing party’s evidence. The court then applied the law to those facts to determine whether a claim or defense existed. The procedure was rarely used in prac-tice because a party would agree to the facts and conclusions of the opposing party’s evidence only in an unusual case;48 a party would

41 See Francis Buller, An Introduction to the Law Relative to Trials at Nisi Prius 307 (London, W. Strahan & M. Woodfall 1772).

42 Cocksedge v. Fanshaw, (1779) 99 Eng. Rep. 80, 88; see also Gibson v. Hunter, (1793) 126 Eng. Rep. 499, 510 (stating that the defendant must admit “every fact, and every conclusion, which the evidence given for the Plaintiff conduced to prove”).

43 Cocksedge, 99 Eng. Rep. at 88. 44 Gibson, 126 Eng. Rep. at 510. 45 See Cocksedge, 99 Eng. Rep. at 88. 46 See Buller, supra note 41, at 307. 47 See id. 48 See Gibson, 126 Eng. Rep. at 508, 510. Lord Chief Justice Eyre, writing for the

Lords, concluded that “after this explanation of the doctrine of demurrers to evi-dence, I have very confident expectations that a demurrer like the present will never hereafter find its way into this House.” Id. (“[The] proceeding, which is called a de-murrer to evidence, and which though not familiar in practice, is a proceeding well known to the law.”).

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demur to the evidence only when it was concerned that a jury would not appropriately apply the law to the facts of the case.49

In his dissenting opinion in Parklane Hosiery Co. v. Shore,50 Jus-tice Rehnquist, citing Gibson v. Hunter, discussed above, stated that summary judgment did not violate the Seventh Amendment. “[I]n 1791 a demurrer to the evidence, a procedural device substan-tially similar to summary judgment, was a common practice.”51 Jus-tice Rehnquist further stated that “summary judgment . . . [is a] di-rect descendant[] of [its] common-law antecedent[]. [It] accomplish[ed] nothing more than could have been done at com-mon law, albeit by a more cumbersome procedure.”52

Contrary to these statements by Justice Rehnquist, however, the demurrer to the evidence and summary judgment are fundamen-tally different. In its decision whether to grant judgment to a party moving for summary judgment, the court considers the evidence of both the moving and the nonmoving parties, while under the de-murrer to the evidence, the court considered only the facts and conclusions of the evidence of the opposing party. Under summary judgment, the court decides whether a reasonable jury could find for the nonmoving party. In doing so, considering the evidence of both parties, the court makes only reasonable inferences from the evidence. Under the common law, such an action by the court was forbidden. The court was required to accept as true the facts and conclusions of the evidence of the opposing party, whether those facts and conclusions were probable or not. Summary judgment and demurrer to the evidence also differ as to the respective effect that each procedure has on the pending litigation. Under summary judgment, if the judge rules in favor of the nonmoving party, the case proceeds to trial. Under the demurrer to the evidence, if the

49 See James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law 236–38 (Boston, Little, Brown, & Co. 1898); 2 William Tidd, The Practice of the Court of King’s Bench, in Personal Actions 577 (London, A. Strahan & W. Woodfall 1794). For a more extensive description of this procedure, including case descriptions, see Thomas, supra note 12, at 709–15.

50 439 U.S. 322 (1979). 51 Id. at 349 (Rehnquist, J., dissenting). Justice Rehnquist also compared the modern

directed verdict to the directed verdict under the common law. See id. But see Tho-mas, supra note 12, at 731–32 (disputing Justice Rehnquist’s characterization of the similarity of the devices).

52 Parklane Hosiery, 439 U.S. at 350 (Rehnquist, J., dissenting).

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court ruled for the opposing party, the case ended and did not pro-ceed to trial. There, the demurring party was not entitled to judg-ment under the admitted facts and conclusions and, instead, the opposing party was entitled to judgment under those same facts and conclusions.53 Additionally, courts employed summary judg-ment and demurrer to the evidence at different times. Summary judgment occurs before trial while the demurrer to the evidence occurred during the trial.

In addition to the specific differences between summary judg-ment and demurrer to the evidence, summary judgment conflicts with the core principles or the substance of the common law as embodied in the demurrer to the evidence. Similar to the differ-ence between summary judgment and the demurrer to the plead-ings, summary judgment and the demurrer to the evidence differ significantly in the role that the court plays in the decision whether to dismiss a case. While under summary judgment, the court exam-ines the sufficiency of the evidence and may dismiss a case for in-sufficient evidence, under the common law, no comparable proce-dure existed whereby the court dismissed a case based on a determination by the court that the evidence was insufficient. Un-der the common law, the court did not determine whether a rea-sonable jury could find for the opposing party. Rather, the court became involved only upon the admission by the demurring party of the truth of the facts and conclusions of the opposing party, whether those facts and conclusions were probable or not. The court applied the law to the admitted facts and conclusions and did not assess the sufficiency of the parties’ evidence. Only the com-mon law jury could resolve the probability of the evidence and the resulting facts. Thus, summary judgment differs from the core prin-ciples or substance of the common law reflected in the demurrer to the evidence. Under the common law, the jury or the parties de-termined the facts.54 Additionally, under the common law, a jury would decide a case that had any evidence, however improbable, unless the moving party had admitted the facts and conclusions of

53 Compare Fed. R. Civ. P. 56 with supra text accompanying note 41. 54 See supra and infra Section I.B.

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the nonmoving party, including the improbable facts and conclu-sions.55

Justice Rehnquist stated that the procedures of summary judg-ment and demurrer to the evidence were substantially similar. In fact, they are not. Citing the House of Lords’ decision in Gibson v. Hunter, the Justice also stated that the demurrer to the evidence was common.56 One need look no further than Gibson itself to test these statements. There, the House of Lords stated that the proce-dure was “not familiar in practice” and surmised that following its clarification of the standard for the demurrer, under which the de-murring party must admit all facts and conclusions to win, the par-ties would rarely use the procedure.57

3. Nonsuit and Summary Judgment

The nonsuit was another procedure under the English com-mon law in 1791.58 The English courts used the nonsuit in two dif-ferent ways. The first, and more common, occurred when the plain-tiff did not appear after his name was called in court59 either because he believed that his evidence was insufficient or because he believed that he had no claim under the law.60 The plaintiff would be nonsuited and could commence the same suit against the same defendant at a later date.61 If, however, the plaintiff appeared or, in other words, did not withdraw from the case, the jury would decide the case, and the plaintiff could not try his case again.62 Un-der the nonsuit, the plaintiff could not be compelled to withdraw.63 Thus, “if he insist[ed] upon the matter being left to the jury, they must give in their verdict.”64

55 See supra and infra Section I.B. 56 Parklane Hosiery, 439 U.S. at 349 (Rehnquist, J., dissenting). 57 Gibson v. Hunter, (1793) 126 Eng. Rep. 499, 508, 510. 58 See 2 Tidd, supra note 49, at 586–87. 59 See id. 60 See id. at 586. 61 See 3 Blackstone, supra note 35, at *376–77. 62 Id. at *377. 63 See 2 Tidd, supra note 49, at 588. 64 Id. For a more extensive description of the procedure, see Thomas, supra note 12,

at 722–23. James Oldham wrote that Judge Mansfield might nonsuit a plaintiff even without his “acquiescence,” although the judge sometimes noted that he invited the plaintiff to move for a new trial. Oldham, Special Juries, supra note 30, at 11–12.

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Summary judgment differs from the common law nonsuit. Under summary judgment, the court decides whether to dismiss a case be-cause of the insufficiency of the evidence. In contrast, under the nonsuit, the decision to withdraw belonged only to the plaintiff, not to the court. Additionally, under summary judgment, the party against whom summary judgment is ordered cannot bring the case again. Under the nonsuit, the plaintiff could try his case again.

In addition to the specific differences between summary judg-ment and the nonsuit, summary judgment conflicts with the core principles or the substance of the common law reflected in the non-suit. Under the common law, the jury or the parties determined the facts.65 A court itself never decided the case without such a deter-mination of the facts by the jury or the parties.

The second type of nonsuit, referred to as the “compulsory non-suit,” was rare.66 This occurred without the plaintiff’s consent and upon the defendant’s motion following a jury verdict for the plain-tiff.67 Under the compulsory nonsuit, the court would enter judg-ment for the defendant only if the jury’s verdict was unsupported as to a particular matter of law.68 For example, the plaintiff may not have presented certain specific, required evidence.69 In one case, the plaintiff had not produced the person who had signed the bond that was at issue in the case. While this was a “technical rule,” this was required.70 A compulsory nonsuit could not be ordered, how-ever, upon general assertions regarding the insufficiency of the plaintiff’s evidence.71 As Justice Buller stated in Company of Car-penters v. Hayward, “[w]hether there be any evidence, is a question for the Judge. Whether [there be] sufficient evidence, is for the jury.”72

65 See supra and infra Section I.B. 66 See Oldham, Right to Jury Trial, supra note 33, at 231 n.35. 67 See Edith Guild Henderson, The Background of the Seventh Amendment, 80

Harv. L. Rev. 289, 301 (1966). 68 See Co. of Carpenters v. Hayward, (1780) 99 Eng. Rep. 241; Pleasant v. Benson,

(1811) 104 Eng. Rep. 590, 591. 69 See, e.g., Abbot v. Plumbe, (1779) 99 Eng. Rep. 141. 70 Id. 71 See, e.g., Co. of Carpenters, 99 Eng. Rep. 241. 72 Id. at 242 (emphasis added). For a more extensive description of this procedure,

see Thomas, supra note 12, at 722–25.

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Summary judgment is substantially different from the compul-sory nonsuit. While both procedures involve judicial determina-tions without the plaintiff’s consent, under summary judgment, the court determines the general sufficiency of the evidence. This dif-fers from the compulsory nonsuit, under which the court played no such role. Also, summary judgment occurs before a jury trial, while the compulsory nonsuit occurred after a jury trial.

In addition to the specific difference between summary judg-ment and the compulsory nonsuit, summary judgment conflicts with the core principles or the substance of the common law as re-flected in the compulsory nonsuit. Under the common law, the jury or the parties determined the facts. A court itself never decided the case without such a determination of the facts by the jury or the parties.73

4. Special Case and Summary Judgment

Under the special case, also referred to as the “case stated,”74 a jury’s general verdict for the plaintiff was subject to a legal deter-mination by the court upon the case stated.75 After the facts of the case were firmly established and stated by the court, either upon the parties’ agreement or the jury’s determination, the legal issues would then be decided.76 The parties would argue the determina-

73 See supra and infra Section I.B. 74 See Oldham, Special Juries, supra note 30, at 13 (discussing the case stated and

also arguing that Edith Henderson inaccurately described the role of the jury under the case stated); see also James Oldham, 1 The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century 251–52, 258–59 (1992) [hereinafter Oldham, Mansfield Manuscripts] (discussing Luke v. Lyde, 452 nb 224 (1759) and Moses v. Macferlan, 455 nb 139 (1760)). But see Henderson, supra note 67, at 305–06 (arguing that the jury “scarcely participated at all” under the case stated).

75 See 3 Blackstone, supra note 35, at *378. 76 See id.; 2 Tidd, supra note 49, at 598 (“In a special case, as in a special verdict, the

facts proved at the trial ought to be stated, and not merely the evidence of the facts. It is usually dictated by the court, and signed by the counsel, before the jury are dis-charged; and if in settling it, any difference arises about a fact, the opinion of the jury is taken, and the fact stated accordingly.”). Oldham discusses the procedure of the Court of King’s Bench, one of the common law courts. James Oldham, English Com-mon Law in the Age of Mansfield 12–76 (2004). The full court would decide matters that under modern procedure might be decided by a single judge including motions for new trial and arrest of judgment and cases stated. See Oldham, supra, at 43; see also Thomas, supra note 12, at 753 n.399 (stating that the full court would decide de-

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tive legal issue, strictly constrained to the case stated at the trial.77 The court decided only a legal issue, which, under the common law special case, did not involve a question of the sufficiency of the evidence.78

Summary judgment contrasts with the common law special case. Under summary judgment, the court determines whether a reason-able jury could find for the nonmoving party. By assessing the suf-ficiency of the evidence, the court examines the facts and the law, independent of the jury’s participation. In contrast, under the spe-cial case, the parties would have agreed to the facts of the case, or if the parties had disagreed, the jury would have determined the facts. The facts were conclusively established—or “stated”—prior to the judge’s resolution of the legal issues. Under the special case, the court used these facts to decide the legal issues in the case. Also, summary judgment occurs before a jury trial, while the spe-cial case occurred after a jury trial.

In addition to the specific differences between summary judg-ment and the special case, summary judgment conflicts with the core principles or substance of the common law as reflected in the special case. Under the common law, the jury or the parties deter-mined the facts. The court itself never decided the case without such a determination of the facts by the jury or the parties.79

5. New Trial and Summary Judgment

Under the common law, a party could move for a new trial after a jury trial had been held and the jury had rendered a verdict against that party.80 A party could argue that the evidence did not support the jury verdict.81 The court granted the motion if the ver-dict was strongly against the weight of the evidence.82

murrer to pleadings, demurrer to evidence, special verdict, special case, and arrest of judgment).

77 See 3 Blackstone, supra note 35, at *378; 2 Tidd, supra note 49, at 598–99. 78 See 2 Tidd, supra note 49, at 598–99. For a more extensive description of this pro-

cedure, see Thomas, supra note 12, at 735. 79 See supra and infra Section I.B. 80 See 3 Blackstone, supra note 35, at *387. 81 See id. 82 See id. For a more extensive description of this procedure, see Thomas, supra

note 12, at 742–46. For descriptions of other common law procedures, including the direction of a verdict, special verdict, and arrest of judgment, see id. at 728–30, 732–

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Under summary judgment, like the common law motion for a new trial, the court may review the evidence to determine whether sufficient evidence supports the nonmoving party’s case. However, unlike summary judgment, under which the court orders judgment for the moving party in cases in which it determines that there is in-sufficient evidence, under the common law, the court ordered a new trial by a jury. Under summary judgment, there is no jury trial at all. The court decides the sufficiency of the evidence without viewing the evidence at trial.

In addition to the specific differences between summary judg-ment and the common law new trial motion, summary judgment conflicts with the core principles or substance of the common law as reflected in the new trial motion. Under the common law, the jury or the parties determined the facts. The court itself never de-cided the case without such a determination of the facts by the jury or the parties. Moreover, a court would determine the sufficiency of the evidence only after a jury trial. If the court believed that the evidence was insufficient, it would order a new trial. The court would never order judgment. Additionally, under the common law, a jury would decide a case that had any evidence, however improb-able that evidence was, unless the moving party had admitted the facts and conclusions of the opposing party, including improbable facts and conclusions.83

C. Summary Judgment Is Unconstitutional

The Supreme Court has stated that new procedures that affect the jury trial right, like summary judgment, must satisfy the sub-stance of the jury trial under the English common law in 1791.84 In

33, 737–40. All of these procedures share the characteristics of what I have referred to as the core principles or substance of the common law. Under these procedures, the jury or the parties determined the facts. The court itself never decided the case with-out such a determination of the facts by the jury or the parties. Moreover, a court would determine the sufficiency of the evidence only after a jury trial, and if the court believed that the evidence was insufficient, it would order a new trial. The court would never order judgment for the verdict loser. Additionally, a jury would decide a case that had any evidence, however improbable that evidence was unless the moving party had admitted the facts and conclusions of the nonmoving party, however im-probable the facts and conclusions. See supra and infra Section I.B.

83 See supra and infra Section I.B. 84 See supra text accompanying notes 25–30.

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its jurisprudence, however, the Court has failed to articulate what constitutes the substance of the common law. Instead, the Court has individually compared the new procedures to common law procedures85 and, under this approach, has held constitutional every new procedure that it has considered that removes cases from juries before, during, and after trial.86

In the previous Section, I described the common law procedures that the Supreme Court has attempted to favorably compare to new procedures, including summary judgment. I demonstrated that summary judgment does not resemble those procedures. First, summary judgment, under which the court considers only reason-able inferences from the evidence, contrasts with the common law demurrer to the pleadings and the common law demurrer to the evidence, under which the court must consider as true the allega-tions or facts and conclusions of the opposing party, however im-probable those facts or conclusions may be. Second, summary judg-ment, under which the court dismisses the case with prejudice after deciding that the evidence of the nonmoving party is insufficient, contrasts with the common law nonsuit, under which the plaintiff voluntarily withdraws from a case without prejudice when he be-lieves his evidence may be insufficient. Third, summary judgment, under which the court dismisses a case upon a determination of the general insufficiency of the evidence, contrasts with the common law compulsory nonsuit and the common law special case, under which the court would never dismiss a case based on the general insufficiency of the evidence. Finally, summary judgment, under which the court dismisses a case based on the insufficiency of evi-dence, contrasts with the common law new trial, under which the court did not dismiss the case but rather ordered a new trial if the evidence was insufficient.

In the previous Section, I also demonstrated that core principles emanate from the common law procedures and that summary judgment violates these principles, or the substance, of the com-mon law. Summary judgment violates the first core principle that the jury or the parties determined the facts. The court itself would never decide a case without such a determination of the facts by

85 See, e.g., infra Subsection II.B.2. 86 See supra note 32.

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the jury or the parties. Under summary judgment, contrary to this principle, the court decides the case without a jury or the parties deciding the facts. The court assesses the evidence, decides what inferences from the evidence are reasonable, and decides whether a reasonable jury could find for the nonmoving party.

Summary judgment also breaches the second core principle of the common law that a court would determine whether the evi-dence was sufficient to support the jury verdict only after the par-ties presented evidence at trial, and only after a jury rendered a verdict. Even then, the court would order only a new trial, not judgment, if the evidence was insufficient. In contrast, under sum-mary judgment, a court orders judgment for the moving party prior to trial if the court determines that the nonmoving party’s evidence is insufficient.

Finally, summary judgment violates the third core principle of the common law that a jury, not a court, decided a case that had any evidence, however improbable, unless the moving party admit-ted all facts and conclusions of the nonmoving party, including the improbable facts and conclusions. In contrast, under summary judgment the moving party does not admit the truth of the non-moving party’s evidence. Instead, the court determines the reason-ableness of the evidence and removes cases from the jury based on this assessment.

Using the test for constitutionality that the Supreme Court has articulated since the adoption of the Seventh Amendment in 1791, I have described how summary judgment violates the core princi-ples or the substance of the common law and is therefore unconsti-tutional. The next Part examines and rejects the justifications for the continuation of summary judgment.

II. TWENTIETH-CENTURY ARGUMENTS TO JUSTIFY SUMMARY JUDGMENT

Although summary judgment did not exist under the common law, and the procedure does not satisfy the substance of the com-mon law jury trial, a number of arguments can be anticipated in re-sponse to my assertion that summary judgment is unconstitutional. Those arguments, which are set forth below, are based on miscon-ceptions about the constitutionality analysis and a failure to ana-lyze the alleged necessity of summary judgment.

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A. Argument #1: Summary Judgment Is Constitutional Because Under the Procedure the Court Decides Only Legal Questions,

Not Factual Questions

Some may argue that summary judgment is constitutional, main-taining that under the motion, a court decides only legal questions and does not determine factual questions. In such cases in which “no genuine issue as to any material fact” exists,87 the court only applies the law to the facts. Accordingly, there is no Seventh Amendment violation.88

Scholars emphasize and overstate the importance of this law-fact distinction.89 The focus, instead, should be on the common law. The common law governs whether an issue is for a judge or a jury and whether an issue is one of fact or one of law. As described in Sec-tions I.B and I.C, under the common law, in contrast to under summary judgment, the court could consider the sufficiency of the evidence only after a jury trial and a jury verdict. In cases in which the court found the evidence insufficient, another jury, not the judge, would decide the case upon a second trial. One might choose to characterize the court’s determination as a legal question or a factual question. But, regardless of this characterization, under the common law, if the court determined that there was insufficient evidence, another jury decided the case, not the court.

Indeed, if there was a modern procedure by which the parties agreed on the facts of the case and the court decided the case based on those facts, then the procedure would be constitutional under the common law.90 Summary judgment is not such a procedure. Upon a motion for summary judgment, the moving party argues that a reasonable jury could not find for the nonmoving party, and

87 Fed. R. Civ. P. 56(c). 88 See, e.g., Miller, supra note 7, at 1075 (“[I]f no ‘genuine issue of material fact’ ex-

ists and the movant is entitled to judgment ‘as a matter of law,’ pretrial disposition does not raise questions of constitutional dimensions.”). But see id. at 1074–1132 (ac-knowledging that under certain circumstances, summary judgment may be problem-atic constitutionally).

89 See, e.g., id. at 1074–1132. Professor Paul Kirgis conducts an interesting analysis of certain changes in the Supreme Court’s jurisprudence on this distinction. See Paul F. Kirgis, The Right to a Jury Decision on Questions of Fact Under the Seventh Amendment, 64 Ohio St. L.J. 1125 (2003).

90 See supra Section I.B; cf. Thomas, supra note 12, at 732–33 (describing the com-mon law “special verdict,” under which the jury decided the facts).

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the nonmoving party argues, to the contrary, that a reasonable jury could find for him. In other words, the parties disagree on what their evidence demonstrates. The court must resolve this difference and decide what the evidence could show.91 In Anderson v. Liberty Lobby, Inc., one of the trilogy of cases decided by the Supreme Court regarding summary judgment, the Court described the non-moving party’s burden as follows: “‘sufficient evidence supporting the claimed factual dispute [must] be shown to require a jury . . . to resolve the parties’ differing versions of the truth at trial.’”92 In a typical case in which summary judgment is granted, the moving and nonmoving parties each present depositions, affidavits, and docu-ments to demonstrate their versions of the facts, and the court de-cides that the nonmoving party has failed to show that his evidence is sufficient for a reasonable jury to find for him. Again, under the common law, a court could not make such a sufficiency determina-tion before a trial had occurred and could never dismiss a case for insufficient evidence. After a jury trial, a court could decide that the evidence was insufficient. At that point, however, the court did not dismiss the case, but rather another jury heard the case.93

91 See supra text accompanying notes 21–23. 92 477 U.S. 242, 249 (1986) (emphasis added) (quoting First Nat’l Bank of Ariz. v.

Cities Serv. Co., 391 U.S. 253, 289 (1968)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“The moving party is ‘entitled to a judgment as a matter of law’ be-cause the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” (emphasis added)). In Anderson, the Court also stated:

Nor are judges any longer required to submit a question to a jury merely be-cause some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what is called a scintilla of evidence in support of a case the judge was bound to leave it to the jury, but recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is im-posed.

477 U.S. at 251 (second emphasis added) (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1871)).

93 Scholars have discussed whether certain specific questions of reasonableness were legal issues for judges under the common law. See, e.g., Oldham, Special Juries, supra note 30, at 37–39. In a previous article, I discussed that any such decisions by the common law court appear to be based upon undisputed or established facts. Thomas, supra note 12, at 715–16 n.164. A prominent example is the question of what notice is

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The law-fact distinction will be a popular response to my argu-ment that summary judgment is unconstitutional.94 As shown here, however, this distinction has no meaning outside the context of the common law, and the common law demonstrates that courts could not exercise the power that they now employ under summary judg-ment.

B. Argument #2: The Constitutionality of Summary Judgment Has Already Been Decided

It will be shocking to courts and civil procedure scholars that the issue of the constitutionality of summary judgment is undecided. They will cite Fidelity & Deposit Co. v. United States95 for the con-stitutionality of the procedure,96 and for further support, they will

reasonable. Id. There are other possible arguments that have been made in support of the court deciding certain factual issues. James Oldham has argued that there may be a complexity exception to the right to a jury trial. Oldham, Special Juries, supra note 30, at 17–24. He has stated that there were some claims that sought equitable relief for which a jury trial would not be required for factual issues. For example, he observed: “Many eighteenth-century business disputes called for a financial accounting, and this equitable remedy would be sought in Chancery. If factual questions arose, the Court of Chancery was under no compulsion to send the factual questions to a jury.” Id. at 22. Moreover, “most business cases tried in common-law courts in England in 1791 were tried by special juries, not common juries, and typically the special jurors were merchants who were encouraged to use their own familiarity with relevant mercantile customs and practices in deciding upon their verdicts.” Id. Additionally, many such cases were decided by arbitration with the consent of the parties. See id. at 23. Each of these situations can be distinguished. One situation concerns equity. One situation involves a jury, albeit a special jury. Also, the last situation—arbitration—occurred with the consent of the parties. Oldham also discusses the role of the jury in cases in which the plaintiffs received judgment but the jury had not determined the damages. Id. at 49–56. He explained that this usually occurred where there had been a default judgment. Id. at 49. While the court could conduct a writ of inquiry to determine damages, this was done with the consent of the plaintiff. Id. at 56.

94 A recent decision by the Fifth Circuit is interesting on this law-fact issue. There, after a jury granted maintenance and cure to the plaintiff seaman, a panel of the Fifth Circuit reversed the district court’s denial of the defendant’s motion for judgment as a matter of law. Then, the court denied rehearing en banc of the panel’s decision. In the dissent to the court’s denial of rehearing en banc, Judges Stewart, King, Higginbotham, Wiener, Benavides, and Dennis emphasized that “[t]he panel major-ity, under the guise of correcting errors of law, usurped the jury’s Seventh Amend-ment function, replacing the jury’s verdict with a verdict of its own.” Brown v. Parker Drilling Offshore Corp., 444 F.3d 457, 458 (5th Cir. 2006) (Stewart, J., dissenting).

95 187 U.S. 315 (1902). 96 See, e.g., Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336 (1979) (citing Fidelity

& Deposit Co., 187 U.S. at 319–21, for the proposition that “summary judgment does

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cite the cases that decided the constitutionality of judgment not-withstanding the verdict and the directed verdict.97 None of those cases, however, supports the constitutionality of summary judg-ment.

1. Fidelity & Deposit Co. v. United States

The Supreme Court and scholars were wrong to have cited Fidel-ity as the case that established the constitutionality of summary judgment, because the procedure in Fidelity did not resemble summary judgment. In Parklane Hosiery Co. v. Shore, the Court prominently cited Fidelity for the constitutionality of summary judgment when it examined the constitutionality of non-mutual of-fensive collateral estoppel under the Seventh Amendment.98 Simi-lar to its analysis in other cases, in Parklane, the Court assessed the constitutionality of this new collateral estoppel procedure by com-paring it to procedures under the English common law in 1791, when the Amendment was adopted.99 In support of the addition of this procedure, in Parklane, the Court stated that other new proce-dures, including summary judgment, had been held constitutional under the Seventh Amendment, and the Court specifically cited Fidelity as holding that summary judgment was constitutional un-der the Seventh Amendment.100

The rule in Fidelity was not the same or similar to summary judg-ment, however. In Fidelity, the plaintiff sued the defendant under a contract claim.101 Under a rule promulgated by the Supreme Court

not violate the Seventh Amendment”); Brunet et al., supra note 1, at 20 (noting that “the Supreme Court unequivocally upheld the constitutional validity of summary judgment”); Samuel Issacharoff & George Loewenstein, Second Thoughts About Summary Judgment, 100 Yale L.J. 73, 76 & n.18 (1990); Miller, supra note 7, at 1019 & n.202 (remarking that the constitutionality of summary judgment has been “well accepted” since Fidelity); Margaret L. Moses, What the Jury Must Hear: The Su-preme Court’s Evolving Seventh Amendment Jurisprudence, 68 Geo. Wash. L. Rev. 183, 227 & n.314 (2000); Colleen P. Murphy, Judicial Assessment of Legal Remedies, 94 Nw. U. L. Rev. 153, 172 & n.115 (1999); Sward, supra note 7, at 624–25; Patrick Woolley, Mass Tort Litigation and the Seventh Amendment Reexamination Clause, 83 Iowa L. Rev. 499, 504 & n.26 (1998).

97 See infra Subsection II.B.2. 98 Parklane, 439 U.S. at 336. 99 Id. at 335–36. 100 Id. at 336. 101 Fidelity, 187 U.S. at 316.

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of the District of Columbia, the court could enter judgment for the plaintiff if two conditions were met: the plaintiff filed an affidavit that stated the cause of action and the amount owed, and the de-fendant failed to file an affidavit that denied the claim and stated a defense to it.102 Pursuant to this rule, the plaintiff in the case filed an affidavit in which he alleged the existence of the contract and the amount owed by the defendant.103 In response, the defendant filed an affidavit in which it asserted that it lacked sufficient knowledge as to the alleged contracts and debt.104 Because the de-fendant failed to raise a defense in its affidavit, the trial court granted judgment to the plaintiff, and the court of appeals affirmed the judgment.105

In its review of the court of appeals’ decision, the United States Supreme Court characterized the defendant’s argument that the rule deprived the defendant of its right to a jury trial as “a constitu-tional right to old forms of procedure.”106 The Court responded to the defendant’s argument by stating that Congress had the power to change the rules, and that the new rule, promulgated under the power granted by Congress, did not violate the right of the defen-dant to a jury trial.107 The Court emphasized that under the rule, “the facts stated in the affidavit of defence [were to] be accepted as true” and that the purpose of the rule was to prevent delays where no defense existed.108 The Court emphasized that here, the defen-dant had failed to raise any defense to the claim of the plaintiff.109

In Parklane, the Supreme Court cited Fidelity as establishing the constitutionality of summary judgment, and scholars have followed suit in citing Fidelity for this proposition.110 However, the rule in Fi-delity is dissimilar to summary judgment. Under summary judg-ment, the court examines the evidence and determines whether there is a genuine issue of material fact or, in other words, whether a reasonable jury could find for the nonmoving party. In deciding

102 Id. at 318–19. 103 Id. at 316–17. 104 Id. at 317. 105 Id. at 318. 106 Id. at 321. 107 Id. at 320–21. 108 Id. at 320. 109 Id. at 317–18, 322. 110 See supra note 96.

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this question, a court examines the evidence submitted by both parties, including any deposition transcripts and documents, to de-termine whether there is sufficient evidence for a jury to find for the nonmoving party. Thus, under summary judgment, while a court is to review the evidence in the light most favorable to the nonmoving party, the facts alleged by the nonmoving party are not accepted as true. In contrast to summary judgment, under the rule at issue in Fidelity, the court did not review the evidence that sup-ported each party’s case but rather accepted as true the facts al-leged by the nonmoving party.111 Indeed, the rule in Fidelity most closely resembled very different modern procedures—the motion to dismiss or judgment on the pleadings, by which a party moves for dismissal under the facts alleged by the nonmoving party.112

The actual analysis of the Seventh Amendment in Fidelity was quite sparse, constituting only a few paragraphs. The Court did not quote or cite the Seventh Amendment, nor did the Court compare the rule at issue to procedures under the common law. Neverthe-less, the Supreme Court and scholars continue to—incorrectly—cite Fidelity for the critical proposition that summary judgment is constitutional.113

2. The Constitutionality of Judgment Notwithstanding the Verdict and the Directed Verdict

Although the rule in Fidelity did not resemble summary judg-ment, the Court has examined the constitutionality of other mod-ern procedures that have some similarity to summary judgment. Upon a motion for judgment notwithstanding the verdict and a

111 Fidelity, 187 U.S. at 320. 112 Fed. R. Civ. P. 12; see also supra note 39 (arguing that the motion to dismiss is

constitutional under the Seventh Amendment). 113 An additional interesting point regarding the rule in Fidelity is that under the

rule, only the plaintiff could win judgment. This contrasts with the procedure of sum-mary judgment under which either the plaintiff or the defendant may move for judg-ment. Indeed, it is primarily the defendants who do so, and courts rarely order judg-ment in favor of plaintiffs. Professors Issacharoff and Loewenstein describe summary judgment as “a defendant’s motion.” Issacharoff & Loewenstein, supra note 96, at 92. They studied published federal district opinions that refer to Celotex v. Catrett, one of the trilogy of summary judgment cases decided by the Supreme Court in 1986. In the cases decided in the first quarter of 1988, they found that defendants made eighty-seven percent of the motions, and plaintiffs made only thirteen percent of the mo-tions. Id. at 91–92.

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motion for a directed verdict, like a motion for summary judgment, a court decides whether a reasonable jury could find for the non-moving party.114 As a result of this similarity in the standards for granting these motions, the constitutionality analyses in the cases regarding judgment notwithstanding the verdict and the directed verdict might be argued to support the constitutionality of sum-mary judgment. As described below, however, in those decisions, the Court failed to accurately describe the common law procedures to which it compared judgment notwithstanding the verdict and the directed verdict. Additionally, the Court has changed course on these issues, first deciding that judgment notwithstanding the ver-dict was unconstitutional and later deciding that the procedure was constitutional. Moreover, the procedures of judgment notwith-standing the verdict and the directed verdict differ significantly from summary judgment. Thus, as set forth below, the constitu-tionality analyses in the cases regarding judgment notwithstanding the verdict and the directed verdict fail to support the constitution-ality of summary judgment.

a. The Constitutionality of Judgment Notwithstanding the Verdict

In Baltimore & Carolina Line, Inc. v. Redman, the Supreme Court effectively considered the issue of the constitutionality of judgment notwithstanding the verdict.115 Under this procedure, af-ter a jury finds for a party, the court decides whether a reasonable jury could have found for that party.116 If the court determines that a reasonable jury would not have found for the verdict winner, the court enters judgment for the party who lost the jury verdict.117

In Redman, the Court emphasized the substance of the Seventh Amendment, which it stated required a judge to decide the legal issues and a jury to decide the factual issues.118 After a review of the

114 See Fed. R. Civ. P. 50; see also infra note 128. While Rule 50 refers to judgment as a matter of law, judgment notwithstanding the verdict was the terminology previ-ously used in Rule 50 and as a result is the term used in many Supreme Court deci-sions.

115 295 U.S. 654, 659–60 (1935); Brunet et al., supra note 1, at 17 n.9 (noting that the Court found it constitutional for the lower court to have reserved the sufficiency ques-tion and to have decided this sufficiency question after the jury verdict).

116 Fed. R. Civ. P. 50(a)(1) & 50(b). 117 Id. 118 295 U.S. at 657.

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common law procedures, the Court determined that the sufficiency of the evidence, which the procedure at issue involved, was such a question of law for the judge.119 In support of its rationale, the Court compared this modern procedure to the common law special case.120 The Court observed that under the common law, certain questions of law were reserved during the jury trial for the court’s determination after the jury verdict.121 The Court further noted that in some cases under the common law, courts had entered judgment for the party who lost the jury verdict.122 Analogizing the determi-nation of the sufficiency of the evidence under the modern proce-dure to questions of law that were reserved for judges under the common law, the Court held that the procedure was constitutional under the Seventh Amendment.123 As a result, if a court found the evidence was insufficient at a trial, the court could order judgment against the verdict winner instead of ordering a new trial.124

In Redman, the Court inaccurately described the common law procedures. Under the common law, if a court determined that the verdict was not supported by the evidence, the court could not en-ter judgment for the party who lost a verdict. Instead, a jury would try the case and decide which party prevailed.125 The procedure in Redman, which was effectively judgment notwithstanding the ver-dict, violated the common law by permitting a judge to decide both the sufficiency of the evidence and the outcome of the case. As shown below, Redman was a drastic change to the jurisprudence of the Court on the role of the jury. Just twenty years earlier in Slocum v. New York Life Insurance Co., the Court held that juries should decide these same cases.126

b. The Constitutionality of the Directed Verdict

After the Redman decision, in Galloway v. United States, the Su-preme Court considered the constitutionality of the directed ver-

119 Id. at 659. 120 Id. at 659–60. 121 Id. at 659. 122 Id. at 659–60 n.5. 123 Id at 660–61. 124 See id. at 661. 125 See supra Subsection I.B.5. 126 228 U.S. 364, 399 (1913); see infra text accompanying notes 151–62.

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dict.127 Using the same standard as summary judgment and judg-ment notwithstanding the verdict, under the directed verdict, the trial court decides whether a reasonable jury could find for the nonmoving party.128 If the court decides a reasonable jury could not find for the nonmoving party, the court enters judgment for the moving party during the trial and before a finding by the jury.129

In Galloway, the Court attempted to defend the constitutionality of the directed verdict by reference to the common law.130 The Court compared the common law procedures of the demurrer to the evidence and the new trial to the modern directed verdict and incorrectly stated that all of the procedures were methods by which courts would weigh the evidence to determine whether to submit a case to a jury.131

The Court criticized arguments that the modern directed verdict violated the Seventh Amendment because under the common law, “allegedly higher standards of proof [were] required and . . . differ-ent consequences follow[ed] as to further maintenance of the litiga-tion.”132 The Court first responded to the argument that the di-rected verdict was unconstitutional because different consequences followed from the common law and the new procedures. In this discussion, the Court stated that the Seventh Amendment “was de-signed to preserve the basic institution of jury trial in only its most fundamental elements.”133 The inconsistency between the conse-quences of the common law demurrer to the evidence, under which the motion ended the litigation, and the common law new trial, un-der which a party had another chance to prove his case, demon-

127 319 U.S. 372 (1943). 128 Fed. R. Civ. P. 50(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251–52

(1986) (describing the “reasonable jury” standard under both procedures and stating “[i]n essence, . . . the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”).

129 See Galloway, 319 U.S. at 372–73. 130 Id. at 388–90. The Court first explained that the objection to the constitutionality

of modern procedures that review the sufficiency of the evidence, like the directed verdict at issue here, came too late. This issue had been decided long ago and had been applied consistently since that time. Id.

131 Id. at 390. 132 Id. at 390. 133 Id. at 392.

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strated that “neither [consequence was] essential.”134 The Court was critical of the common law requirement, which it characterized as under the demurrer to the evidence, allowing a party to chal-lenge the legal sufficiency of the other party’s case if it admitted the opposing party’s evidence and sacrificed his own case.135 The Court found this procedure wholly inconsistent with the new trial. Unlike the demurrer to the evidence, under a motion for a new trial, the court also considered the evidence of the moving party when that party challenged the sufficiency of the evidence of the verdict-winner.136 If the moving party lost, he lost not because he had admitted that he had no case.137 He lost because the court found the winning party’s evidence sufficient, and the jury had found that evidence outweighed the losing party’s evidence.138

Despite the Court’s analysis, the English common law in 1791 was very consistent. In Galloway, the Court had incorrectly de-scribed the common law, first by inaccurately describing demurrer to the evidence, and second by attempting to equate the proce-dures of demurrer to the evidence and new trial and then dismiss-ing their different characteristics. Contrary to the Court’s descrip-tion, demurrer to the evidence was not a procedure that permitted a party to challenge the sufficiency of the opposing party’s evi-dence.139 It was the opposite. Upon the motion, the demurring party accepted the facts and conclusions of the opposing party’s evi-dence, however improbable the evidence was. The court then ap-plied the law to the facts agreed to by the parties. A party de-murred and agreed to the opposing party’s evidence because he believed that the jury would not follow the law.140 Under a different common law procedure, the new trial motion, after a jury verdict, a

134 Id. at 394. 135 Id. at 393–94. 136 Id. at 393 nn.28–29. 137 Id. 138 Id. at 393–94 n.29. The Court also explained that the common law continually

changed, including the demurrer to the evidence, and accordingly, federal courts were not bound by any specific procedures of the common law in 1791. Id. at 391–92 & n.23. As described above, the common law does not support this proposition by the Court.

139 See supra text accompanying note 41–57. 140 See supra notes 41–49.

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court would decide if the evidence was insufficient to support the verdict and, if so, the court would order a new trial.141

Under a core principle of the common law, reflected in the de-murrer to the evidence and the new trial motion, only a jury or the parties decided the facts. The parties could agree on the facts, and the court could then apply the law to these facts, or the court could send a case to another jury if the court determined that the evi-dence was insufficient. The Court attempted to show that because the demurrer to the evidence and the motion for a new trial were different, neither of their characteristics was essential. As shown here, the procedures were different, but consistent and essential. Under the common law, the jury or the parties decided the facts. The court itself never decided a case without such a determination by the jury or the parties.

In a footnote, the Court discussed the common law procedure of the nonsuit.142 Specifically, the Court stated that the nonsuit changed from a procedure that allowed the plaintiff to voluntarily withdraw his case to a procedure that allowed the defendant to challenge the sufficiency of the plaintiff’s evidence.143 The Court found that this transformed nonsuit differed from the directed ver-dict “only in form.”144 The Court again incorrectly described the common law procedures. Contrary to the description of the Court, under the common law a court could not consider the sufficiency of the evidence under the nonsuit.145 Only after a jury trial could the court examine the evidence of the parties, and even then, the court would send the case to another jury if it found the evidence insuffi-cient.146

141 See supra Subsection I.B.5. 142 Galloway, 319 U.S. at 391 n.23. 143 Id. 144 Id. The Court did, however, recognize that unlike the modern directed verdict,

the nonsuit permitted the plaintiff to retry his case. Id. In the same footnote in which the Court discussed the nonsuit, the Court also briefly stated that the directing of a verdict was not uncommon under the common law. Id. In fact, directing a verdict un-der the common law was not similar in any way to the modern directed verdict. Tho-mas, supra note 12, at 728–30.

145 See supra Subsection I.B.3. 146 See supra Subsection I.B.5. In analyzing the constitutionality of modern proce-

dures, the Supreme Court has also examined the common law direction of a verdict, the special verdict, and the arrest of judgment. Thomas, supra note 12. Because sum-mary judgment is a pretrial procedure, the other devices discussed by the Court are

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In Galloway, the Court also responded to the argument that the modern directed verdict was unconstitutional because there were different standards of proof for submission of a case to a jury under the common law in comparison to under the modern directed ver-dict.147 The Court stated that the differences were inconsequential and that, most importantly, the “essential requirement [to submit a case to a jury] is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked.”148

Again the Court did not accurately state the common law re-quirements. A core principle of the common law was that a jury would decide a case with any evidence, however improbable, unless the moving party had admitted the facts and conclusions of the nonmoving party, including improbable facts and conclusions. This principle directly contradicts the Court’s description of the “essential requirement” of the common law under which the court analyzes whether facts are “probative” and draws “reasonably pos-sible inferences.”149

Some may argue that the reasoning of the Court in Galloway should be followed with respect to the constitutionality of summary judgment. Under the Court’s reasoning, under the common law new trial a court could determine the sufficiency of the evidence, and under the common law demurrer to the evidence, a court could dismiss a case for insufficient evidence. Thus, summary judgment, under which a court can dismiss a case for insufficient evidence, is not significantly different. However appealing this characterization of the common law is, it mischaracterizes the role of the jury and the judge under the common law. Under the com-mon law, the court might decide that the jury found contrary to the

not specifically relevant to this analysis. In any event, all of the procedures are consis-tent with the core principles. See generally id.

147 Galloway, 319 U.S. at 390. 148 Id. at 395. In discussing the proper standard by which to determine the constitu-

tionality of a modern procedure, the Court held that “‘substantial evidence’ rather than ‘some evidence’ or ‘any evidence’ or vice versa” was not helpful to this determi-nation. Id. Justice Black, joined by Justices Douglas and Murphy, dissented. Justice Black bemoaned the loss of the jury trial right and stated that “[t]oday’s decision marks a continuation of the gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment.” Id. at 397 (Black, J., dissenting).

149 Id. at 395 (majority opinion).

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evidence in a case. The court made this decision after it had viewed all the evidence at the trial and after the decision of the jury. The court would then order the case to be heard by another jury. Only rarely, using the demurrer to the evidence, would a court dismiss a case before a jury verdict. Under that procedure, a court did not determine the sufficiency of the evidence. In order to move for judgment under that procedure, a party must have admitted all of the facts and conclusions of the opposing party, including improb-able ones. The only other option for that party was for the jury to determine such facts and conclusions. Almost never would parties invoke the demurrer to the evidence because they could not obtain from a judge a result that they could not obtain from a jury. In fact, parties moved for such judgment only in cases in which they be-lieved that the jury would not apply the law. Summary judgment is very much unlike the procedures under the common law. Under summary judgment, a court decides that the evidence is insufficient and orders judgment for one party. In contrast, upon its finding that the evidence was insufficient, a common law court would or-der only a new trial. Again, under the common law, this finding would occur only after evidence was presented in court and only after a jury verdict. Thus, the Galloway decision on the constitu-tionality of the directed verdict does not support the constitutional-ity of summary judgment.150

150 James Oldham has also been critical of the Supreme Court’s articulation of the English common law. He argues that “[t]he Seventh Amendment historical test has become an American legal fiction in application, since many more things were lodged with juries in England in 1791 than modern American courts, including the Supreme Court, are prepared to acknowledge.” Oldham, Special Juries, supra note 30, at 15; see also, e.g., id. at 7–9 (discussing problems with the Court’s explanation of the Eng-lish common law in Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996)). There are two other arguments that the procedure of summary judgment is consti-tutional because of various changes. First, before the enactment of the federal rules that require only notice pleading, more formal pleading rules eliminated more cases. Under notice pleading, the court now is not able to dismiss cases it otherwise previ-ously would have been able to dismiss. As the Court stated in Celotex:

Before the shift to “notice pleading” accomplished by the Federal Rules, mo-tions to dismiss a complaint or to strike a defense were the principal tools by which factually insufficient claims or defenses could be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources. But with the advent of “notice pleading,” the motion to dis-miss seldom fulfills this function any more, and its place has been taken by the motion for summary judgment.

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c. A Change in Supreme Court Jurisprudence Away from Jury Power and Toward Court Power

There is a telling sign of the problems in the Court’s interpreta-tion of the Seventh Amendment, particularly on the sufficiency of the evidence issue. In a period of twenty years, the Supreme Court’s jurisprudence on the sufficiency issue completely changed. In Redman, the Court altered its analysis of the common law jury trial requirements from its previous decision in Slocum v. New York Life Insurance Co.151 The Court had first, in Slocum, decided that a judge could not order judgment for a party upon a finding of insufficient evidence and, instead, a second jury must hear the case. Then, twenty years later, in Redman, the Court decided that a court could indeed order judgment in such a case.152

In Slocum, the Court addressed the constitutionality of judgment notwithstanding the verdict.153 After the jury found for the plaintiff, and the district court refused to grant the defendant’s motion for judgment notwithstanding the verdict, the Third Circuit reversed the jury verdict based on its conclusion that there was insufficient evidence to sustain the jury verdict for the plaintiff.154 The Supreme

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). In a recent article, Professor Bur-bank discussed this shift in the rules and the plans of the rule makers. Burbank argued that the rule makers failed to study the costs of notice pleading, discovery, and sum-mary judgment to demonstrate that an appropriate balance was struck with the new rules. See Burbank, supra note 3, at 598–99, 603, 620. For a description of the reform of common law pleadings in the early postrevolutionary period, see William E. Nel-son, Americanization of the Common Law: The Impact of Legal Change on Massa-chusetts Society, 1760-1830, at 67–88 (1975). There is a second argument that summary judgment is constitutional because of other changes. The argument proceeds that various changes have occurred since the adoption of the Seventh Amendment, including the merger of law and equity, such that juries now hear some of the cases that judges might have heard in 1791, when the Seventh Amendment was adopted. Cf. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 516–19 (1959) (Stewart, J., dissenting). Regardless of any changes, an examination of the substance of the common law in comparison to the new procedure—here, summary judgment—is the relevant consti-tutional inquiry. Summary judgment expands the procedures by which cases may be removed from a jury far beyond any procedure under the common law and contrary to the core principles of the common law.

151 228 U.S. 364 (1913); see also Brunet et al., supra note 1, at 17 n.9. 152 See supra text accompanying notes 115–26; 9A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2522, at 244–46 (2d ed. 1995). 153 Slocum, 228 U.S. at 369, 376–80. 154 Id. at 376.

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Court held that it was impermissible for a court to reexamine the facts of a dispute other than “according to the rules of the common law.”155 After a review of the common law procedures of the de-murrer to the evidence and the nonsuit, the Court found that the only permissible way in which the facts tried by a jury could be re-examined under the common law was if a new trial was ordered based on an error of law, which included insufficient evidence.156 Because under judgment notwithstanding the verdict, a court could reexamine the facts and grant judgment to the party that lost, the Court held the procedure unconstitutional.157 The Court recognized that, under the common law, a case could be dismissed if the plead-ings were accepted as true and there was no claim or defense under those facts. Here, however, the lower court did not accept the pleaded facts but, instead, decided the sufficiency of the evi-dence.158 The Court’s words regarding the Seventh Amendment right to a jury trial were significant.

In the trial by jury, the right to which is secured by the Seventh Amendment, both the court and the jury are essential factors. To the former is committed a power of direction and superinten-dence, and to the latter the ultimate determination of the issues of fact. Only through the cooperation of the two, each acting within its appropriate sphere, can the constitutional right be sat-isfied. And so, to dispense with either or to permit one to disre-gard the province of the other is to impinge on that right.159

The Court further stated that

[I]t is the province of the jury to hear the evidence and by their verdict to settle the issues of fact, no matter what the state of the evidence, and that while it is the province of the court to aid the jury in the right discharge of their duty, even to the extent of di-recting their verdict where the insufficiency or conclusive charac-ter of the evidence warrants such a direction, the court cannot dispense with a verdict, or disregard one when given, and itself pass on the issues of fact. In other words, the constitutional guar-

155 Id. at 380. 156 See id. at 399. 157 See id. 158 Id. at 381–82. 159 Id. at 382.

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anty operates to require that the issues be settled by the verdict of a jury, unless the right thereto be waived. It is not a question of whether the facts are difficult or easy of ascertainment, but of the tribunal charged with their ascertainment, and this, we have seen, consists of the court and jury, unless there be a waiver of the latter.160

Despite this clear articulation by the Supreme Court of the roles of the judge and the jury under the common law and the inconsis-tency of judgment notwithstanding the verdict with these roles, in Redman, twenty years later, the Court disregarded this decision. In an about-face, the Court effectively decided that judgment not-withstanding the verdict was sufficiently consistent with the com-mon law.161 Despite the principle of the common law that only the jury or the parties decided the facts, and, as such, the court could not decide a case without such a determination, the Court decided that upon the trial court’s own assessment of the evidence, the court could order judgment against the party who had won the jury verdict.162

The Supreme Court had the requirements of the common law correct in its first decision in Slocum. Although it is unclear what caused the change in its jurisprudence, this—in effect—reversal makes even more clear that the constitutionality analyses of judg-ment notwithstanding the verdict and the directed verdict do not support the constitutionality of summary judgment.

d. Differences Between the Procedure of Summary Judgment and the Procedures of Judgment Notwithstanding the Verdict and the Directed Verdict

One might argue that if summary judgment is unconstitutional, then the directed verdict and judgment notwithstanding the ver-dict, which both use the same standard as summary judgment, nec-essarily also must be unconstitutional. While the same standard is used for all of the procedures (whether a reasonable jury could find for the nonmoving party), there are differences between the pro-cedures. Summary judgment occurs prior to a trial. In contrast, the

160 Id. at 387–88. 161 See supra text accompanying notes 115–26. 162 Id.

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directed verdict and judgment notwithstanding the verdict respec-tively occur during and after the trial. For this reason, summary judgment is the least justifiable of the procedures under the Sev-enth Amendment. Because summary judgment is employed prior to the presentation of any evidence, a court must decide the suffi-ciency of the evidence without being able to view the evidence in the context of the trial. For example, the court examines deposition transcripts and affidavits without hearing the witnesses themselves. This was never allowed under the common law, even upon a mo-tion for a new trial. Under the common law, the court decided the sufficiency of the evidence after seeing the evidence presented at a trial and, if the evidence was insufficient, ordered a new trial. These differences make summary judgment the least compatible of the procedures with the Seventh Amendment.163

C. Argument #3: Summary Judgment Is Constitutional Because Summary Judgment Is Necessary to the Proper Functioning of the

Federal Courts

Under conventional wisdom, summary judgment is a necessary procedure in the federal court system; the federal docket would be detrimentally affected by the elimination of summary judgment, including the effect that more trials would take place.164 In other words, the grant of summary judgment currently prevents trials from occurring. Moreover, the possibility that courts will employ the procedure encourages the settlement of cases before the pro-cedure is used and the grant of summary judgment also encourages the settlement of cases. Without the possibility of summary judg-ment, these cases would not settle and would go to trial. Moreover, if summary judgment was eliminated, lawyers might bring more cases with weak evidence because courts could not eliminate such cases on summary judgment.

Despite this conventional wisdom, it may be that the federal docket would not be significantly affected by the elimination of

163 With this stated, there is good support to also question the constitutionality of both the directed verdict and judgment notwithstanding the verdict. The Redman and Slocum cases, described above, are appropriate places to start in reviewing the Court’s decision to change course.

164 Cf. supra notes 1–4 and accompanying text.

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summary judgment. Without summary judgment, parties might continue to settle, because they can lose at trial.165 Also, additional cases might not be brought for reasons that include that lawyers would not want to bring such weak cases, or lawyers do not have enough resources to bring these cases. Moreover, the elimination of summary judgment might have a positive impact on the federal docket. With the elimination of summary judgment, the courts—district and appellate alike—will be relieved of the significant bur-den of reviewing the evidence presented by the parties on the mo-tion for summary judgment, which may constitute several inches and often many boxes of material.166 Moreover, if a case that would have been dismissed on summary judgment goes to trial, the cost to the court of conducting the trial may be less than the cost would have been if the court had decided the summary judgment motion itself. Thus, the conventional wisdom regarding the importance of summary judgment to the management of the dockets may be

165 The settlement posture of the parties will be different, however, than when the possibility of summary judgment influenced the proceedings. In most cases, defen-dants have benefited in settlements from the possibility of a court granting summary judgment. In settlements before a ruling on the motion, the likelihood that the plain-tiff would lose on summary judgment would decrease the amount that a plaintiff would receive in settlement. In settlements after the motion was decided in favor of the defendant, the likelihood that defendant would continue to prevail on appeal would decrease any amount that plaintiff would receive in settlement. Thus, if sum-mary judgment is eliminated, plaintiffs may receive more in settlements because they no longer can lose on summary judgment. Professors Issacharoff and Loewenstein stated that “perhaps the most striking and unambiguous impact of [summary judg-ment] is a transfer of wealth from plaintiffs to defendants.” Issacharoff & Loewen-stein, supra note 96, at 103. Their study showed that summary judgment never in-creased but often decreased the recovery for plaintiff and, accordingly, benefited defendants. Id. at 103–05 (describing summary judgment as “an easy or cost-free pro-cedure for defendants to invoke”). In their discussion of the economic effect of sum-mary judgment, Professors Issacharoff and Loewenstein emphasized that the avail-ability of summary judgment might actually deter settlement, as “[n]umerous studies have demonstrated that bargainers are less likely to reach a settlement when inequi-ties of power exist between them than when they are in positions of symmetrical power.” Issacharoff & Loewenstein, supra note 96, at 103.

166 The district courts also spend significant resources managing discovery disputes. Indeed, the parties generally expend much effort on summary judgment as well. The parties may engage in extensive discovery to attempt to win or alternatively not to lose the motion.

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wrong and summary judgment may actually be instead a significant burden on the federal system.167

CONCLUSION

It is an appropriate time for the Court to change its jurispruden-tial course regarding the Seventh Amendment and hold summary judgment unconstitutional. Federal courts frequently employ summary judgment to dispose of cases, and the procedure has,

167 For further discussion disputing the perception that summary judgment is neces-sary, see John Bronsteen, Against Summary Judgment, 75 Geo. Wash. L. Rev. (forth-coming 2007), available at http://ssrn.com/abstract=925158; Morton Denlow, Sum-mary Judgment: Boon or Burden?, The Judges’ Journal, Summer 1998; D. Theodore Rave, Note, Questioning the Efficiency of Summary Judgment, 81 N.Y.U. L. Rev. 875 (2006). While more specific study regarding the effects of summary judgment on the courts is desirable and beyond the scope of this Essay, the literature on the economics of settlement may be helpful. See, e.g., Robert Cooter & Thomas Ulen, Law and Economics 388–443 (4th ed. 2004); Thomas J. Miceli, Economics of the Law: Torts, Contracts, Property, Litigation 156–200 (1997); George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984). Summary judgment has been stated to have originated from an English procedure established in 1855. See Fed. R. Civ. P. 56 advisory committee’s note (1937); Burbank, supra note 3, at 592 (“Inspired by English procedure that originally existed for the benefit of plaintiffs seeking to collect debts with dispatch, the rule was made available to both sides and in all types of actions.”); Charles E. Clark, The Summary Judgment, 36 Minn. L. Rev. 567 (1952); Miller, supra note 7, at 1016–17; Leland Ware, Inferring Intent from Proof of Pretext: Resolving the Summary Judgment Confusion in Em-ployment Discrimination Cases Alleging Disparate Treatment, 4 Emp. Rts. & Emp. Pol’y J. 37, 42 (2000). Summary judgment bears little resemblance to the English pro-cedure, however. Unlike summary judgment, the English procedure was available only to plaintiffs. Issacharoff & Loewenstein, supra note 96, at 76; Ware, supra, at 42. Moreover, it was available only in cases that involved a debt created by overdue bills and promissory notes, where the debtor could not dispute the existence of the agree-ment. Miller, supra note 7, at 1016–17. Under the procedure, defendants could not delay judgment with mere technicalities, “but instead had [to file an affidavit showing] the existence of a defense justifying a trial by raising an issue of fact or a difficult question of law.” Id. at 1017. In other words, the court was concerned about whether a defense existed at all and not about the sufficiency of the evidence supporting the defense. The advisory committee appeared to ignore the differences between sum-mary judgment and the English procedure. Fed. R. Civ. P. 56 advisory committee’s note (1937). Professor Burbank wrote that the procedure represented a significant expansion from the procedure that first existed in England in the mid-nineteenth cen-tury. See Burbank, supra note 3, at 602. He observed that there is evidence that the advisory committee had the “tendency not to distinguish their radical new rule from the much more limited procedural tools with which they were familiar, including the English procedure.” Id. He further stated that “Rule 56 was an experiment backed up by little relevant experience, let alone data.” Id. at 592.

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thus, contributed to the decrease in the availability of civil jury tri-als.

Having recently taken renewed interest in the proper role of the jury under the Sixth Amendment,168 it would be fitting for the Court to examine this issue in the context of the Seventh Amend-ment. In the last seven years, in interpreting the Sixth Amendment, the Court has given power back to the criminal jury, emphasizing the historical role of the jury.169 In comparison, the text of the Sev-enth Amendment, which requires the court to follow the “common law,” dictates an even more significant role for history in the pres-ervation of the right to a civil jury trial under the Seventh Amend-ment.

As described in this Essay, three core principles emanate from the common law that demonstrate the unconstitutionality of sum-mary judgment. First, under the common law, the jury or the par-ties determined the facts. The court itself never decided a case without such a determination. Second, a court would determine the sufficiency of the evidence only after a jury trial, and if the court believed that the evidence was insufficient, it would order only a new trial. The court would never order judgment for the moving party upon a review of the sufficiency of the evidence. Third, a jury would decide a case that had any evidence, however improbable that evidence was, unless the moving party admitted the facts and conclusions of the nonmoving party, including improbable facts and conclusions. Summary judgment, under which a court dis-misses a case after its assessment of the sufficiency of the evidence, including the reasonableness of the factual inferences, wholly con-trasts with these principles. Accordingly, the Court should, follow-ing the historical mandate of the Amendment, declare summary judgment unconstitutional.

168 U.S. Const. amend. VI. 169 See United States v. Booker, 543 U.S. 220, 230–34 (2005); Blakely v. Washington,

542 U.S. 296, 305–06 (2004); Ring v. Arizona, 536 U.S. 584, 607, 609 (2002); Apprendi v. New Jersey, 530 U.S. 466, 476–80 (2000).