Summary Judgment is Constitutional

35 Pages Posted: 9 Apr 2008 Last revised: 8 Mar 2010

See all articles by Edward Brunet

Edward Brunet

Lewis & Clark College Paul L Boley Library


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.

Keywords: trial by inspection, Seventh Amendment, Rejection of rigid historical text

Suggested Citation

Brunet, Edward, Summary Judgment is Constitutional. Iowa Law Review, Vol. 93, 2008, Lewis & Clark Law School Legal Studies Research Paper No. 2008-14, Available at SSRN:

Edward Brunet (Contact Author)

Lewis & Clark College Paul L Boley Library ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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