Why Summary Judgment is Still Unconstitutional: A Reply to Professors Brunet and Nelson

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.

Keywords: 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

JEL Classifications: J7, K40, K41

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