Thursday, February 23, 2006

Thomas on the Unconstitutionality of Summary Judgment

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!


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The article is quite interesting. As a self-styled employment law specialist, I have noticed an increasing tendency for judges to give summary judgment to defendants when it appears the judges do not believe the facts as alleged by the plaintiff, or do not believe the plaintiff can prove the alleged facts; and for appellate justices to uphold the grant of summary judgment. In employment law cases, the plaintiff (employee) is constantly denied the right of a jury trial because the judges grant summary judgment for the defendant (company); however the plaintiff (employee) almost never obtains summary judgment against the defendant (company). In case-after-case where summary judgment is given to the defendant (company) there appears to be allegations, that if true, would prove a violation of Title VII, age discrimination, or other employee protection laws.

Therefore, even if summary judgment is not unconstitutional under the Seventh Amendment it is unfair (a violation of due process?). The only criticism I have of the article is that the author repeats herself too many times, as people writing for law reviews tend to do (in order to make the article more lengthy?).

Posted by: Jim Frierson | Feb 23, 2006 12:54:26 PM

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