Questioning the Efficiency of Summary Judgment

36 Pages Posted: 13 Mar 2012

See all articles by D. Theodore Rave

D. Theodore Rave

University of Texas at Austin - School of Law

Date Written: May 1, 2006

Abstract

The primary justification for summary judgment is efficiency, but the motion’s efficiency has been largely assumed. Avoiding trials reduces costs, but that savings is only realized when the motion is granted. This Note offers a framework for analyzing the efficiency of summary judgment. If the cost of trials avoided does not exceed the cost of summary judgment motions filed, then summary judgment is inefficient. Modern doctrine places a low production burden on defendants moving for summary judgment and a high production burden on plaintiffs opposing the motion, creating incentives for defendants to file many motions and for plaintiffs to incur substantial costs in opposing them. If the motion is not granted with enough frequency and does not have a positive impact on the settlement rate, then its availability and use may cost more than the trials it avoids. Drawing on available empirical data and assumptions based on the incentives of the parties, this Note goes on to lay out some of the conditions necessary for summary judgment to be efficient and concludes with a call for more empirical investigation into the success rate of summary judgment motions and the costs of litigation.

Keywords: summary judgment, federal rules of civil procedure, rule 56, efficiency, celotex

Suggested Citation

Rave, D. Theodore, Questioning the Efficiency of Summary Judgment (May 1, 2006). New York University Law Review, Vol. 81, pp. 875-910, 2006, Available at SSRN: https://ssrn.com/abstract=2020429

D. Theodore Rave (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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