Probability, Confidence, and the Constitutionality of Summary Judgment

66 Pages Posted: 18 Dec 2012 Last revised: 8 Jan 2016

See all articles by Luke Meier

Luke Meier

Baylor University - Law School

Date Written: January 29, 2014


Professor Suja Thomas has famously asserted that summary judgment violates the Seventh Amendment guarantee of a right to a jury trial in civil cases. Most commentators and courts, however, continue to believe that summary judgment is constitutional and that the issue was resolved by the Supreme Court in Fidelity & Deposit Co. v. United States. This Article argues that this entire debate is misguided. The current debate has proceeded under the assumption that every summary judgment raises identical Seventh Amendment concerns. The reality, however, is more complex. This Article distinguishes between the concepts of probability and confidence, both of which can be the basis of a summary judgment. When summary judgment is entered pursuant to a confidence analysis, no Seventh Amendment violation occurs. This conclusion is confirmed by existing Supreme Court case law. When, however, summary judgment is entered pursuant to a probability analysis, Seventh Amendment concerns arise; contrary to popular believe, the Supreme Court has not addressed these Seventh Amendment concerns.

Keywords: summary judgment, Seventh Amendment, jury trial, Rule 56, probability, confidence, Thomas, Meier, fidelity, Slocum, Redman, Galloway

Suggested Citation

Meier, Luke, Probability, Confidence, and the Constitutionality of Summary Judgment (January 29, 2014). 42 Hastings Constitutional Law Quarterly 1 (2014), Available at SSRN: or

Luke Meier (Contact Author)

Baylor University - Law School ( email )

Sheila & Walter Umphrey Law Center
1114 South University Parks Drive
Waco, TX 76706
United States

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