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Abstract:
Summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that "[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." The Supreme Court has held that "common law" in the Seventh Amendment refers to the English common law in 1791. This Essay demonstrates that no procedure similar to summary judgment existed under 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 responds 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 necessary to the judicial system but rather, by contrast, imposes significant costs upon the system.

summary judgment, Seventh Amendment, jury, trial, civil procedure, Fidelity & Deposit Company, judgment as a matter of law, judgment notwithstanding the verdict, directed verdict, common law, originalism, demurrer to the evidence, Celotex, Anderson, Liberty Lobby, Parklane, Redman, Galloway, Slocum

Abstract:
This Article is the first to address the issue of the constitutionality of the motion to dismiss. Until now, motions to dismiss have not been the subject of much academic commentary, in part because courts have rarely dismissed cases upon motions to dismiss. However, decisions by the Court this past term in Bell Atlantic Corp. v. Twombly and Tellabs, Inc. v. Makor Issues & Rights, Ltd. changed the civil procedure landscape tremendously. In these decisions, the Court "retire[d]" the fifty-year-old rule of Conley v. Gibson under which a complaint could not be dismissed unless there was "no set of facts" upon which relief could be granted. The Court cast this rule away in favor of a standard under which courts critically assess whether the claim is plausible and at times, examine inferences that favor both the plaintiff and the defendant. In setting up this new standard, the Court emphasized the concern that companies should not be subject to discovery and forced settlements in unmeritorious cases and also stressed that Congress and the rule-makers possessed the authority to establish pleading procedures. Under the new standards, courts will dismiss cases much more often using the motion to dismiss. This impending phenomenon of increased dismissals by judges before the fact-finder hears any evidence is noteworthy. It will compound a significant decline in the number of jury trials due to dismissals upon summary judgment, and this will occur in the presence of the Seventh Amendment that, by its text and history, strongly protects the right to a jury trial. Under established Supreme Court case law interpreting the Seventh Amendment, the "common law" governs the power of constitutional actors such as the courts and Congress to interfere with the jury trial. Under this case law, a modern procedure must satisfy the substance of the English common law jury trial in 1791 to be constitutional under the Seventh Amendment. This Article argues that Twombly and Tellabs did not adequately follow the Supreme Court jurisprudence on the Seventh Amendment. In Twombly, albeit not raised, the Court failed to recognize the Seventh Amendment issue that overlay its decision despite the significant effect of the decision on the right to a jury trial. In Tellabs, where it did recognize a Seventh Amendment question, the Court ignored the governing common law. These cases open up a new constitutional discussion that tests the limits of the Seventh Amendment. The Article shows that the new motion to dismiss standards do not adequately comport with the substance of the common law jury trial and thus are unconstitutional. Contrary to the common law, these standards permit courts to improperly assess the plausibility of facts and corresponding inferences pled by plaintiffs and weigh those inferences against inferences that favor defendants. The Article concludes that while Twombly and Tellabs were in the limited areas of antitrust and securities fraud, the standards set forth in those cases will be used to dismiss a variety of fact-intensive cases including those frequently dismissed upon summary judgment such as employment discrimination and other civil rights cases.

motion to dismiss, summary judgment, Twombly, Tellabs, Conley, Seventh Amendment, jury, antitrust, securities fraud, common law, civil procedure

Abstract:
Civil procedure scholars have extensively discussed the new 12(b)(6) standard articulated by the Supreme Court in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. In this discourse, however, an interesting development has not been explored. The standard for the motion to dismiss has evolved in such a way as to make the motion to dismiss the new summary judgment motion. Despite different words in Federal Rules of Civil Procedure 12(b)(6) and 56 and no discovery before dismissal under 12(b)(6), the new 12(b)(6) dismissal standard now tracks the standard for summary judgment. Moreover, the motion to dismiss under the new summary judgment-like standard may have effects similar to those experienced under summary judgment, including a significant use of the procedure by courts, a related increased role for judges in litigation and a corresponding increased dismissal of employment discrimination cases. This essay describes the similarities between the motion to dismiss and the motion for summary judgment, and also explains how, as a result of these similarities, Swierkiewicz v. Sorema may no longer be good law. This essay further proposes that differences between the motions, including discovery, cost and the role of the courts, call into question the propriety of the changes under Iqbal and Twombly.

Iqbal, Twombly, Bell Atlantic, summary judgment, motion to dismiss, plausible, plausibility, Rule 56, Rule 8, Rule 8(a)(2), notice pleading, notice, Conley

Abstract:
This Article is the first to examine the proper role of the jury in private securities fraud litigation. In the Private Securities Litigation Reform Act, Congress required that a securities fraud complaint plead "a strong inference" of scienter. The courts have disagreed on the standard that satisfies this requirement, and likewise, the involved parties disagree. Defendant corporations argue for a stringent standard that would result in the dismissal of many claims, while plaintiff investors support a flexible standard that would allow more claims to go forward. Indeed, the Supreme Court's resolution of this issue may have an impact beyond securities litigation. If a stringent standard is adopted, special pleading may be permitted in a whole variety of other cases, including employment discrimination cases, resulting in many dismissals before any discovery has even been conducted. In the present context, securities law experts have not addressed the constitutional issue posed by the special pleading requirement; whether this requirement violates the Seventh Amendment right to a jury trial. The Supreme Court has held that a modern procedure must satisfy the substance of the English common law jury trial in 1791 to be constitutional under the Seventh Amendment. Accordingly, the special pleading rules developed in 21st century securities litigation must be viewed through an 18th century common law lens. This Article argues that the scienter standards developed by the courts in securities cases do not comport with substance of the common law jury trial and thus are constitutionally problematic. Contrary to the common law, the courts improperly engage in one or more steps of assessing the reasonableness of facts and corresponding inferences pled by the plaintiffs. This Article proposes a constitutionally permissible alternative standard to dismiss a securities fraud claim. The Article acknowledges the possible constitutional infirmity posed by the PSLRA's "strong inference" standard itself and its heightened pleading requirements and argues that because Congress sought to solve problems with the class action nature of securities fraud actions, the focus should have been class actions specifically, instead of the cause of action generally.

Private Securities Litigation Reform Act, PSLRA, heightened, fraud, civil procedure, 9(b), 12(b)(6), motion to dismiss, Seventh Amendment, jury, securities, English common law, common law, scienter, corporations

Abstract:
The U.S. Supreme Court has held that judges can dismiss cases before, during, or after trial if they decide that no reasonable jury could find for the plaintiff. The Court has also held that judges cannot dismiss cases based on their own views of the sufficiency of the evidence. I contend, however, that judges do exactly that. Judges dismiss cases based simply on their own views of the evidence, not based on how a reasonable jury could view the evidence. This phenomenon can be seen in the decisions dismissing cases. Judges describe how they perceive the evidence, interchangeably use the terminology of reasonable jury, reasonable juror, rational juror, and rational factfinder, among others—although the terms are all different in meaning—and indeed, disagree among themselves on what the evidence shows. I further argue that the reasonable jury standard is a legal fiction that involves a false factual premise: that courts can actually apply the reasonable jury standard. Evidence that courts cannot apply the standard includes the current substitution of a judge’s views for a reasonable jury’s views and the speculative, indeed impossible, determination that a judge would be required to perform to determine whether any reasonable jury could find for the plaintiff. As a result, I conclude that the basis upon which judges dismiss cases under the major dispositive motions is fatally flawed.

summary judgment, directed verdict, judgment as a matter of law, jury, reasonable jury, reasonable juror, reasonableness, reasonable man, sufficiency of the evidence, legal fiction

Abstract:
Judges increasingly use procedural devices which preclude juries from deciding cases or which re-examine decisions by juries. Although the use of these procedures has become a controversial subject in scholarly debate, scholars generally have not questioned their constitutionality. The Seventh Amendment provides that facts tried by a jury may be re-examined only according to the rules of the common law, which the Supreme Court has held means the rules of the English common law in 1791. To determine then the constitutionality of new procedural devices, the Supreme Court has compared them to the procedures under the English common law. In its analyses, the Court has made significant errors, misinterpreting the English common law devices and making inaccurate comparisons of the English devices to the modern procedures. These missteps have led the Supreme Court to evaluate the constitutionality of the procedural devices by a vague standard unrelated to the actual characteristics of the English common law. This Article argues that ten principles can be derived from the English common law to begin the re-analysis of the constitutionality of modern procedures that affect the jury trial right. Given the importance that these new procedures, including summary judgment, play in modern litigation, this Article argues that the Court should re-assess the constitutionality of the procedures in light of these principles and stare decisis.

7th Amendment

Abstract:
This lecture "The Civil Jury: The Disregarded Constitutional Actor" argues that the significant division of power between the judiciary and the jury should be recognized alongside the separation of powers between the branches and the federalism division between the federal government and the states. While the jury is a separate constitutional actor with important powers, the judiciary and the legislature have not recognized it as such. This has led to the constitutionalization of modern procedures which take away the jury trial right before, during and after trial, including through remittitur, summary judgment, the motion to dismiss and federal caps. This jurisprudence on the civil jury exhibits an odd alignment under which so-called liberal justices may hold a jury trial right does not exist, whereas other so-called conservative justices may hold such a right exists. This appears to result from the tendency of liberal justices to shun originalism, even in the context of the Seventh Amendment where originalism is constitutionalized in the text. Here, the liberal justices should embrace originalism. Moreover, the lecture argues that all of the Justices should recognize the significant division of power between the judiciary and the jury by eliminating modern procedures which impinge this division of power.

jury, summary judgment, motion to dismiss, remittitur, tort reform, Seventh Amendment

Abstract:
The modern scholarly discussion of remittitur has been largely limited to the appropriate standards for applying the doctrine and to the appellate review of the motion. Moreover, the Supreme Court's discussion of the constitutionality of remittitur under the Seventh Amendment was dicta and focused only on whether remittitur violated the defendant's constitutional rights. This article takes a new look at the constitutionality of remittitur. The Seventh Amendment uniquely requires that the re-examination of facts determined by a jury should be only according to the "rules of the common law." A review of the text of the Seventh Amendment's re-examination clause, as well as the Supreme Court jurisprudence on the Seventh Amendment, suggest that the English common law in 1791 should influence the analysis of the constitutionality of remittitur. This article examines for the first time the English common law on remittitur and the new trial for excessive damages. The study shows that English courts did not employ remittitur to reduce verdicts. Accordingly, it can be argued that remittitur is unconstitutional. A view of the common law as fixed or static, based only on the English common law, may not be accepted, however. Using an interpretation of the common law in the re-examination clause as not fixed or static based only on the common law, but as evolving, this article argues that the result is the same: remittitur is unconstitutional. Under an interpretation of the common law as evolving, for remittitur to be constitutional, the plaintiff must have the option of taking a new trial as an alternative to accepting the remittitur. Effectively, under the practice of remittitur, plaintiff does not have this option. An original study of remittitur decisions in the federal courts over ten years was conducted and is used to support the conclusion that remittitur effectively eliminates plaintiff's right to a jury trial.

Abstract:
As I have stated, summary judgment is unconstitutional. Professors Edward Brunet and William Nelson's responses to my article Why Summary Judgment Is Unconstitutional confirm that summary judgment is unconstitutional. No procedure analogous to summary judgment existed under the English common law in 1791, the common law that governs the constitutionality of modern procedures that affect the civil jury trial right. Misreading and ignoring the governing common law, Professor Brunet offers a different type of trial under the common law, a non-jury trial - the trial by inspection - as the common law analogy to summary judgment. A look at this trial shows that, if analogous to anything in modern litigation, this trial has similarity to judicial notice, a far cry from summary judgment. Professor Brunet also incorrectly attempts to compare summary judgment to the common law demurrer to the evidence, again ignoring the governing case law. Noted legal historian William Nelson agrees with my analysis that no common law analogy to summary judgment exists. Professor Nelson, however, rejects the Supreme Court's own test that the English common law governs the constitutionality of modern procedures that affect the jury trial right. I conclude that the substance of common law should continue to govern the constitutionality question. The constitution explicitly imposes this common law check on the power of the judiciary over the power of the jury. Under the substance of this governing common law, summary judgment is unconstitutional.

summary judgment, Seventh Amendment, jury, trial, civil procedure, Fidelity & Deposit Company, judgment as a matter of law, judgment notwithstanding the verdict, directed verdict, common law, originalism, demurrer to the evidence, Celotex, Anderson, Liberty Lobby, Parklane, Redman, Galloway, Slocum

Abstract:
The problem of frivolous cases is invoked in a variety of contexts. Although the term is used in the context of Rule 11, it is also used to justify many procedural and substantive changes to the law. For example, concern about frivolous cases is invoked to defend the use of procedural devices that limit litigants' access to courts, including summary judgment, motions to dismiss, heightened pleading, and caps, as well as to justify the narrowing of rights in substantive areas such as prisoner's cases and employment discrimination cases. This symposium essay argues for a different view of frivolous cases - a view that eschews the use of the term and instead proposes a new discussion of the relationship of cost to other rights, including the Seventh Amendment right to a jury trial.

frivolous, jury trial, Seventh Amendment, trial, litigation, cost, Rule 11, summary judgment, motion to dismiss, caps, heightened pleading, prisoner, employment discrimination

Abstract:
Summary judgment is unconstitutional. This symposium article summarizes this thesis, which was first set forth in Why Summary Judgment Is Unconstitutional published by the Virginia Law Review. This article also describes the attention that the thesis has begun to receive in the federal courts and in media.

summary judgment, Seventh Amendment, jury, trial, civil procedure, Fidelity & Deposit Company, judgment as a matter of law, judgment notwithstanding the verdict, directed verdict, common law, originalism, demurrer to the evidence, Celotex, Anderson, Liberty Lobby, Parklane, Redman, Galloway, Slocum

Abstract:
The judiciary sometimes competes for power with another constitutional actor, including the legislature, the executive, the states and the jury. This article addresses the issue of how the judiciary should interpret its own power in relationship to the competing power of other constitutional actors. The article describes how the judiciary has sometimes limited its own power in relationship to the competing power of the legislature, the executive and the states under the doctrines of separation of powers and federalism. A similar doctrine has not been developed, however, under which the judiciary has limited its own power in relationship to the competing power of another constitutional actor - the jury. Upon an examination of the special characteristics of the relationship between the judiciary and the jury under the Sixth and Seventh Amendments and a comparison of these characteristics to principles underlying the separation of powers and federalism, it is argued that the judiciary should act "modestly" in the interpretation of the jury's power as its relates to the judiciary's own power. Under this proposed new model of judicial behavior - that of judicial modesty - the judiciary should narrowly construe its own power in the review of its power versus that of the jury's power. Upon an examination of the jurisprudence of the Supreme Court under the Sixth Amendment, it is found that the judiciary has acted somewhat modestly in the interpretation of its own power versus that of the criminal jury. On the other hand, an examination of the Court's Seventh Amendment jurisprudence shows that the Court has not been sufficiently deferential in the examination of its power versus the jury's power. The article argues that the exercise of modesty in the interpretation of the power of the civil jury may require a re-examination of the constitutionality of certain procedural devices employed by judges that affect the jury trial right. Finally, the article states that in the future this model for judicial behavior - that of judicial modesty - may be found to apply to the judiciary's interpretation of its own power versus the competing power of other constitutional actors.

Judiciary, Jury, Sixth Amendment, Seventh Amendment