Reforming the Summary Judgment Problem: The Consensus Requirement

If one or more federal trial or appellate court judges disagree on whether summary judgment should be ordered, summary judgment can still be granted when an appellate majority finds in favor of summary judgment. The case will be dismissed, and a jury will not try it. Logically, however, should this occur? At least one judge has stated that a reasonable jury could find for the party against whom summary judgment has been ordered. In these situations where judges disagree on whether summary judgment should be granted, they often portray the case’s facts in very different ways—what I refer to as “massaging facts. The massaging of facts, along with the issues of summary judgment’s unconstitutionality and the underlying reasonable jury standard’s impossibility, make summary judgment legally problematic. At the same time, courts extensively employ summary judgment to dismiss many factually intensive cases, including police brutality and sexual harassment cases. Given that summary judgment has no prospect of being eliminated any time soon, the question is whether the “summary judgment problem” can be reformed to make the procedure more defensible. This Article explains the summary judgment problem including the concept of massaging facts. It then analyzes “the consensus requirement”—an effort to make summary judgment more justifiable given its continued use today

The Seventh Amendment, Modern Procedure, and the English Common Law

This Article assumes the validity of the English common law historical test to the constitutionality analysis. It argues, however, that the underlying test, unconnected to actual principles of the common law devices, has caused the invariable constitutionalization of procedures that are increasingly used by the federal courts. This Article develops principles derived from the English common law by which modern procedures that affect the jury trial right can be reassessed. These proposed principles include that procedures permitted under the English common law should be constitutional, and that procedures proscribed under the English common law should be unconstitutional. Part I begins with an examination of the modern procedural devices and an overview of the Supreme Court jurisprudence regarding the constitutionality of the new procedures under the Seventh Amendment. Scholarship regarding the “rules of the common law” is then examined. Part II analyzes the late eighteenth-century English procedural devices used to dismiss a case before a jury heard the case. The devices in place during the trial are then explored, followed by an analysis of the procedures that surrounded the verdict. Additionally, this Part describes the procedures used after a jury rendered a verdict. Each subpart on the English procedures compares the English procedures to modern procedures and critiques the Supreme Court’s analysis of the common law devices. Finally, Part III sets forth principles derived from the English common law by which the constitutionality of modern procedures may begin to be reassessed

Nonincorporation: The Bill of Rights after McDonald v. Chicago

The article focuses on the theories of nonincorporation of the Bill of Rights by the Supreme Court of Notre Dame in the case McDonald v. Chicago. It states that several rights including the Second Amendment right, the Fifth Amendment grand jury right and the Seventh Amendment civil jury trial right was not incorporated against states prior to the McDonald case. It discusses the theories of incorporation of rights based on liberty and justice

Nonincorporation: The Bill of Rights after McDonald v. Chicago

The article focuses on the theories of nonincorporation of the Bill of Rights by the Supreme Court of Notre Dame in the case McDonald v. Chicago. It states that several rights including the Second Amendment right, the Fifth Amendment grand jury right and the Seventh Amendment civil jury trial right was not incorporated against states prior to the McDonald case. It discusses the theories of incorporation of rights based on liberty and justice

The Fallacy of Dispositive Procedure

The U.S. Supreme Court has held that judges can dismiss cases before, during, or after trial if they decide that no reasonable jury could find for the plaintiff. The Court has also held that judges cannot dismiss cases based on their own views of the sufficiency of the evidence. I contend, however, that judges do exactly that. Judges dismiss cases based simply on their own views of the evidence, not based on how a reasonable jury could view the evidence. This phenomenon can be seen in the decisions dismissing cases. Judges describe how they perceive the evidence, interchangeably use the terminology of reasonable jury, reasonable juror, rational juror, and rational factfinder, among others—although the terms are all different in meaning—and indeed, disagree among themselves on what the evidence shows. I further argue that the reasonable jury standard is a legal fiction that involves a false factual premise: that courts can actually apply the reasonable jury standard. Evidence that courts cannot apply the standard includes the current substitution of a judge\u27s views for a reasonable jury\u27s views and the speculative, indeed impossible, determination that a judge would be required to perform to determine whether any reasonable jury could find for the plaintiff. As a result, I conclude that the basis upon which judges dismiss cases under the major dispositive motions is fatally flawe