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Rethinking Summary Judgment Empirics: The Life of the Parties

It hardly needs saying that summary judgment has been a controversial topic. The device was, by many accounts, long a sleepy backwater of the procedural countryside.

In one telling of this story, the Court paved paradise and put up a parking lot of pretrial disposition that unfairly and unreasonably burdens plaintiffs—perhaps even violating the right to a civil jury trial guaranteed by the Seventh Amendment.

As litigation has more than one side, there is, of course, an opposing view—namely that invigorated summary judgment practice simply and efficiently substitutes an early dispositive motion for the substantial and pointless costs of going through the trial motions in a meritless suit. But even this positive position concerning efficiency has been contested. As Samuel Issacharoff and George Loewenstein have suggested, liberalized summary judgment practice might affect the parties’ returns from settlement in cases that otherwise would settle early in the litigation process. If liberalized summary judgment eliminates enough early settlements, then it might actually increase the net costs of administering the federal civil justice system: even if fewer cases get past summary judgment, perhaps more cases get to summary judgment. One scholar has even asserted that, as a practical matter, the costs of civil litigation would fall if we abolished summary judgment altogether.