Against Summary Judgment

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, most people assume this mechanism is necessary for our system to function at reasonable cost. 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\u27s 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