Is Summary Judgment Unconstitutional?

That’s surely a heretical thought to many. And not one that would have popped into my head had reader Joe Norman not commented on my post regarding new trial motions following summary judgment by sending a link to an article by University of Cincinnati College of Law professor Suja Thomas entitled “Why Summary Judgment is Unconstitutional.” Before you laugh off that idea, you ought to read the abstract at that link. An excerpt:

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.”

Odds are slim that I can read the article any time soon, so if anyone reads it, I’d sure be interested in your comments, which I encourage you to leave on this post.

One Comment

  1. Summary Judgment is the major flaw in the way our judiciary is allowed to conduct its business. The procedure allows judges to grant “winks and nods” irregardless of facts and evidence. The recent position on the Canons of Judicial Conduct for Federal judges, making them “aspirational” is the other issue of concern.

    links to recently adopted procedures regarding Canons of Judicial Conduct for Federal Judges. Compliance with these Canons is not mandatory, rather “aspirational”

    read top of page 13 to find commentary about compliance
    http://www.uscourts.gov/library/judicialmisconduct/jud_conduct_and_disability_308_app_B_rev.pdf

    note use of word ” should”, lack of penalty for judges who violate these Canons and lack of remedy for citizen damaged by violation of the Canons
    http://www.uscourts.gov/library/Proposed_Revised_Code_02-29-08.pdf

    if you want to do a story on why the judiciary is under attack, let me know.

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