196 JOURNAL OF CONSTITUTIONAL LAW [Vol. 12:1
discovery and recognizes that going behind the pleadings can estab-
lish that triable issues do not, in fact, exist.
7
While the 1986 “trilogy” redefined the rules governing the sum-
mary judgment procedure by “providing a logical framework for de-
ciding how and when it can be used,”
8
the determination still is, in
many respects, a product of judicial discretion.
9
This Comment ana-
lyzes the extent to which the discretion inherent in the standard pro-
vides an avenue for judges to distort it, and evaluates the constitu-
tional consequences of doing so. Specifically, wrongful application of
the summary judgment standard could run afoul of the Seventh
Amendment guarantee to “preserve[]” the right to a jury trial in cases
at law.
10
Although it is well-settled that summary judgment does not
generally violate the Seventh Amendment,
11
this verity is a mere
7
See FED.R.CIV. P. 56(e)(2) (noting that responding party must not “rely merely on allega-
tions or denials in its own pleading” in responding to a moving party’s motion for sum-
mary judgment).
8
Jack H. Friedenthal, Cases on Summary Judgment: Has There Been a Material Change in Stan-
dards?, 63 N
OTRE DAME L. REV. 770, 787 (1988).
9
See Miller, supra note 3, at 1045 (stating that summary judgment could be conceived as
transforming judges into “pretrial factfinders”). Some have criticized the degree of judi-
cial discretion the trilogy affords judges vis-à-vis the jury which would otherwise (and or-
dinarily does) exercise control over factual matters. See, e.g., Daniel P. Collins, Note,
Summary Judgment and Circumstantial Evidence, 40 S
TAN.L.REV. 491, 491–92 (1988) (not-
ing that the summary judgment standard, which inquires into what a rational jury would
do, affords too much discretion to judges in some contexts). While these concerns relate
to the propriety of the standard itself based on the discretion it affords judges, a more
subtle issue is the question of what discretion judges should have in applying the stan-
dard—that is, whether or not summary judgment must be granted when its requirements
are met; this issue remains unresolved. See Jack H. Friedenthal & Joshua E. Gardner, Judi-
cial Discretion to Deny Summary Judgment in the Era of Managerial Judging, 31 H
OFSTRA L. REV.
91, 104 (2002) (noting that “[f]ederal courts of appeals are currently split over whether
judges must grant summary judgment if it is technically appropriate”).
10
U.S. CONST. amend. VII. This article does not delve into the due process concerns that
would be implicated by arbitrary summary judgment grants. For a brief discussion of that
issue, see Friedenthal, supra note 8, at 771–73.
11
Most scholars note that the constitutionality of summary judgment in the face of the Sev-
enth Amendment was definitively settled by the Supreme Court in Fidelity & Deposit Co. v.
United States, 187 U.S. 315 (1902). See, e.g., Miller, supra note 3, at 1019 (noting that the
Fidelity & Deposit Co. Court accepted the constitutionality of summary judgment in cases
where a jury trial right would otherwise exist). This view has recently been questioned,
however. See Suja A. Thomas, Why Summary Judgment is Unconstitutional, 93 V
A.L.REV.
139, 139 (2007) (noting that the “conventional wisdom . . . that the Supreme Court set-
tled the issue [of summary judgment’s constitutionality] a century ago in Fidelity & Deposit
Co. v. United States. . . . is wrong”). In any event, others have defended summary judg-
ment’s constitutionality by analogizing to the constitutional propriety of the judgment as
a matter of law standard which—as noted supra note 6—mirrors the summary judgment
standard. See Friedenthal, supra note 8, at 772 (noting that “[t]here is no need to ‘rein-
vent the wheel’ by investigating the question whether summary judgment should never be
granted, regardless of the circumstances, in a case in which the right to jury trial exists”