Thursday, February 23, 2006
A little bit of civil procedure on the blog today. Suja Thomas (Cincinnati) writes to say that she has just posted her provocative piece, "Why Summary Judgment is Unconstitutional" on SSRN (link here).
Suja explains that her article directly concerns employment discrimination law as summary judgment is ordered in a lot of employment discrimination cases. She further explains her article this way:
In the piece, I argue that scholars and the Supreme Court incorrectly have assumed that the Court decided the question [of the constitutionality of summary judgment] a century ago in the Fidelity & Deposit case. The question is governed by the Seventh Amendment, which requires adherence to the English common law.
I show that summary judgment did not exist under the English common law nor does it comport with the substance of the common law. As a result I conclude that summary judgment is unconstitutional. (The Seventh Amendment is interesting in that it is the only part of the Constitution that specifically refers to the "common law," and thus the only part of the Constitution that textually requires adherence to the common law.) In the article, I also respond to the likely arguments against my thesis.
Sounds highly interesting. Give it a read!