The Dangers of Summary Judgment: Gender and Federal Civil Litigation

Abstract

This Article examines the problematic application of summary judgment in federal courts through a study of gender cases. Identifying a new dimension of the interrelationship between procedure and gender, I examine the ways in which summary judgment impacts on cases involving gender and gender impacts on judicial decisionmaking on summary judgment, with emphasis on the intersection of Daubert and summary judgment. I analyze summary judgment in federal gender discrimination and tort cases involving women plaintiffs and argue that there is flawed judicial decisionmaking in these cases. I describe empirical data compiled for this Article on whether summary judgment is granted disproportionately against women plaintiffs in federal court. I discuss the special problems of judicial determination of these cases, issues of gender and judging and the need for more diverse decisionmaking, the need for these cases to be heard through live testimony in a public forum, and the way in which summary judgment practice reinforces the troubling "privatization" of federal civil litigation. I conclude that judicial decisionmaking in these cases illustrates the way in which current summary judgment practice permits subtle bias to go unchecked and reveals the dangers of summary judgment generally.

Keywords: gender, summary judgment, civil procedure, discrimination

JEL Classification: K41