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Moderator: Honorable Lavenski R. Smith
U.S. Court of Appeals for the Eighth Circuit
Summary Judgment is Constitutional Professor Brunet will set forth two defenses for summary judgment's constitutionality. The first, a traditional argument, is that demurrer to the evidence is an analogous procedure that fits as a historical antecedent to summary judgment. The second, a new argument, contends that trial by inspection, a common law procedure that permitted judges to decide cases by visually inspecting determinative evidence where the result was obvious, demonstrates that a summary judgment-like procedure existed at common law.
Summary Judgment: Constitutional Issues, Past and Present Professor Thomas will describe and expand upon her argument that summary judgment is unconstitutional. The Seventh Amendment preserves a right to a jury in civil cases under the circumstances where one was afforded at the time the Amendment was added. Thomas argues that no procedure comparable to summary judgment existed at that time. She will also discuss the status of that argument in the legal and academic worlds--including its presence in federal-court briefs and judicial opinions--and respond to the criticisms of her claim.
Summary Judgment and the Progressive Constitution Professor Nelson posits that a twenty-first-century judge who is committed to interpreting the Seventh Amendment as its drafters and ratifiers would have applied it in 1791 should deem summary judgment and the Twombly motion to dismiss unconstitutional. He argues, however, that there are two problems with such a simplistic solution. The main problem is that freezing the law in 1791 makes no sense: the Constitution created a society and economy that has catapulted forward since that date, and to separate the law from that society and economy and to have the law function at cross purposes risks wreckage. Second, Professor Nelson argues that the Seventh Amendment contains a key ambiguity: by referring to the common law ambiguously as something that might change over time, the drafters opened up the possibility that interpretation of the amendment also should change over time in tune with changes in the larger society and economy.
Summary Judgment and Seventh Amendment Concerns
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