Abstract
Prior to a trilogy of Supreme Court cases in 1986, summary judgment was entered only when it was “quite clear what the truth [was].” Demurrers to the pleadings resolved the case on the merits for or against the defendant, and demurrers to evidence at trial required the consent of the parties. Summary judgment was a 19th century device to eliminate spurious defenses from debt collection actions extended to analogous narrow circumstances. It existed in twenty states when adopted with the Federal Rules of Civil Procedure in1938. Today, a judge reviews the evidence on a motion for summary judgment to determine if the burden of proof is satisfied before a jury can hear the case. Meanwhile, the Article III power of judges is limited by the Seventh Amendment preservation of the common law right to trial by jury, which is both an individual right of litigants and a community right of participation in the judiciary.
The history of the common law jury and its institutional role as a check on the power of judges developed in the English and American Revolutions demonstrates the radical alteration in federal judicial power that has occurred in the past twenty-four years through expansive summary judgment. The jury, which now participates in only 1.7% of civil cases as opposed to 12.1% in 1952, will not survive if its ability to sit continues to depend on a judge’s review of the evidence on summary judgment.
Recommended Citation
Richard L. Steagall,
The Recent Explosion in Summary Judgments Entered by the Federal Courts Has Eliminated the Jury From the Judicial Power,
33
S. Ill. U. L.J.
469
(2009).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol33/iss3/5