Reforming the Summary Judgment Problem: The Consensus Requirement

21 Pages Posted: 14 Jun 2018

See all articles by Suja A. Thomas

Suja A. Thomas

University of Illinois College of Law

Date Written: May 29, 2018

Abstract

If one or more federal trial or appellate court judges disagree on whether summary judgment should be ordered, summary judgment can still be granted when an appellate majority finds in favor of summary judgment. The case will be dismissed, and a jury will not try it. Logically, however, should this occur? At least one judge has stated that a reasonable jury could find for the party against whom summary judgment has been ordered. In these situations where judges disagree on whether summary judgment should be granted, they often portray the case’s facts in very different ways—what I refer to as “massaging facts.” The massaging of facts, along with the issues of summary judgment’s unconstitutionality and the underlying reasonable jury standard’s impossibility, make summary judgment legally problematic. At the same time, courts extensively employ summary judgment to dismiss many factually intensive cases, including police brutality and sexual harassment cases. Given that summary judgment has no prospect of being eliminated any time soon, the question is whether the “summary judgment problem” can be reformed to make the procedure more defensible. This Article explains the summary judgment problem including the concept of massaging facts. It then analyzes “the consensus requirement”—an effort to make summary judgment more justifiable given its continued use today.

Keywords: summary judgment, jury, consensus, massaging, facts, police, unconstitutional, seventh amendment

Suggested Citation

Thomas, Suja A., Reforming the Summary Judgment Problem: The Consensus Requirement (May 29, 2018). 86 Fordham L. Rev. 2241 (2018); University of Illinois College of Law Legal Studies Research Paper No. 18-25. Available at SSRN: https://ssrn.com/abstract=3186675

Suja A. Thomas (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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