Summary Judgment

Tom chimed in with a review/some good comments on the article attacking summary judgment that I mentioned earlier. The main portion is worth putting on the main page:

I agree with Solum that the article is remarkably persuasive. However, when your basic premise is as oddball as this article's premise, it doesn't take much persuasion to be remarkably persuasive. Its remarkable the author could make this argument at all.

I think his argument fails in a number of ways, most principally in his idea that summary judgment is somehow different from the "decisions of law" by judges in olde england. His entire article is essentially based on the idea that summary judgment is a brand new thing that the brits didn't even consider. The author tries really hard to make this distinction between what was going on in olde england at the time of the constitutional convention and what is going on now with summary judgment, but this distinction is a little shaky.

He makes the distinction between deciding a case on the law but not the facts (olde england) and the summary judgment "evidence could show" standard.

I think that the "could show" standard doesn't have the judge deciding any facts, but merely looking at what the facts could reasonably show, in the light most favorable to the non-movant. Thomas, the author, thinks this is something different from what judges did in olde england when cases were decided based on the law (with key facts agreed upon).

I think that the two are either so similar that summary judgment is certainly constitutional, or that in fact summary judgment protects litigants rights more than judges deciding cases based on the agreed upon facts, since in summary judgment the facts are viewed in favor of the non-movant.

Of course, the article mostly concentrates on showing that the SCOTUS didn't constitutionally approve summary judgment before, which is a pre-requisite to the distinctions he has to draw between olde english ideas and current ideas of summary judgment.

The article definitely is interesting though, and he is remarkably persuasive. I just think many of the distinctions he draws are false or at best vague. Your mileage may vary.

Also, I suppose that if you happened to believe in a non-originalist interpretation of the constitution, most of his arguments about what specifically the constitution meant by "the common law" would be unpersuasive to you. No olde england required if the constitution is a "living document". I only mention this because it might make his article more difficult to publish in certain circles.