Is summary judgment unconstitutional?
Professor Suja Thomas argues it is in a provocative article scheduled for publication in the Virgina Law Review. Link
From the abstract:
The question is governed by the Seventh Amendment which provides that [i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. The Supreme Court has held that common law in the Seventh Amendment refers to the English common law in 1791. This Article demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles of the English common law. The Article concludes that despite the perceived necessity and uniform acceptance of the device, summary judgment is unconstitutional. The Article also responds to likely objections and explores the far-ranging ramifications of this conclusion.
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