Summary Judgment: What We Think We Know Versus What We Ought to Know

Abstract

The twenty-fifth anniversary of the “trilogy” of summary judgment cases provides a perfect moment to reflect on what summary judgment means to our civil justice system. However, it goes without saying that summary judgment is not one of those procedural topics that has received little attention. Indeed, it is an area of procedure that has produced heated debates, plenty of press, and volumes of law review articles. So, this is not a little-studied area that only gets discussed on these landmark occasions. This leads to the following inquiry: What more can really be written about a topic that appears to be so saturated? This Essay answers that question by arguing that the work that has been done so far, while making an important contribution, does not begin to tell us what the true effect of summary judgment is on potential and actual litigants.This Essay argues that a key inquiry is missing: a systematic study of what is happening in summary judgment on the ground. In other words, what we do not know, but ought to know, is whether summary judgment sifts out meritorious cases and at what rate. We also need to know how the summary judgment process deters individuals with meritorious claims from filing. And, we need to know this information across the board, at both the state and federal level. The point of this Essay is to show that we think we know the answers to these questions based on the body of work that currently exists. While this body of work informs these inquiries, it does not answer them. This Essay argues that the use of this existing work to make principled arguments about the pros and cons of summary judgment will always fall short.