Against Summary Judgment
Loyola University Chicago School of Law
George Washington Law Review, Vol. 75, p. 522, 2007
Summary judgment today is what settlement was twenty-five years ago: an increasingly popular and important form of dispute resolution, widely lauded for its efficiency, that has just begun to capture the full attention of civil procedure scholarship. Despite strong evidence that summary judgment violates the right to jury trial in civil cases guaranteed by the Seventh Amendment, no one is likely to call seriously for the abolition of the practice because all assume we need it. This Article calls that assumption into question, suggesting that summary judgment actually costs us more than it saves and that our civil justice system would be both fairer and more efficient without it. Most cases that now go to summary judgment would settle early rather than go to trial if those were the only two options. By discouraging early settlement, summary judgment imposes large costs because the lion's share of litigation takes place before trial. Moreover, summary judgment creates a systemic pro-defendant bias due to the pressure on judges to move their dockets along by terminating cases rather than letting them proceed to trial.
Number of Pages in PDF File: 30
Keywords: summary judgment, settlement, litigation, procedure, trial
JEL Classification: K4
Date posted: August 18, 2006