Essay: From the 'No Spittin', No Cussin' and No Summary Judgment' Days of Employment Discrimination Litigation to the 'Defendant's Summary Judgment Affirmed Without Comment' Days: One Judge's Four-Decade Perspective
33 Pages Posted: 6 Sep 2014
Date Written: March 1, 2012
Nearly seventy-five years after its birth, the time has come to bury summary judgment. The funeral should be swift, dignified, and joyous. The autopsy would reveal that the cause of death was abuse and overuse by my federal judge colleagues. Summary judgment abuse and overuse occurs in all types of cases, but is especially magnified in employment discrimination cases. This problem is exacerbated by the daily ritual of appellate courts affirming summary judgment grants to employers, often without comment, at a rate that far exceeds any other substantive area of federal law. These beliefs are based on my four-decade career in employment discrimination as a trial and appellate lawyer (for both employees and employers), adjunct law professor, author, speaker, federal magistrate judge, and district court judge. Unfortunately, my colleagues have become increasingly unfriendly to plaintiffs’ employment discrimination claims. I believe there are six primary reasons for this “unfriendliness” or what many scholars have observed as “hostility”: 1) too many frivolous employment discrimination lawsuits; 2) an overworked federal judiciary; 3) increased sophistication of employers; 4) increasingly subtle discrimination; 5) implicit bias in judicial decisions; and 6) a shift among judges from trial judging to case managing. If I were anointed Grand Poobah3 of federal civil procedure for a day, my first act would be to eliminate summary judgment — at least for a five- to ten-year experimental period. The time has come to recognize that summary judgment has become too expensive, too time-consuming for the parties and the judiciary, and too likely to unfairly deprive parties — usually plaintiffs — of their constitutional and statutory rights to trial by jury. I am willing to throw out the baby with the bathwater because the culture of unjustly granting summary judgment is far too ingrained in the federal judiciary to reverse course. There is simply no empirical evidence that summary judgment is efficient or fair. Failing elimination of summary judgment, dramatic modifications to Rule 56 of the Federal Rules of Civil Procedure should be made to help eliminate its disparate and unfair impact.
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