Professor Suja Thomas has famously asserted that summary judgment violates the Seventh Amendment guarantee of a right to a jury trial in civil cases. Most commentators and courts, however, continue to believe that summary judgment is constitutional and that the Supreme Court in Fidelity & Deposit Co. v. United States resolved this issue.
This Article argues that this entire debate is misguided. The current debate has proceeded under the assumption that every summary judgment raises identical Seventh Amendment concerns. The reality, however, is more complex. This Article distinguishes between the concepts of probability and confidence, both of which can be the basis of a summary judgment. When summary judgment is entered pursuant to a confidence analysis, no Seventh Amendment violation occurs. This conclusion is confirmed by existing Supreme Court case law. When, however, summary judgment is entered pursuant to a probability analysis, Seventh Amendment concerns arise. Contrary to popular belief, the Supreme Court has not addressed these Seventh Amendment concerns.
Probability, Confidence, and the Constitutionality of Summary Judgment,
42 Hastings Const. L.Q. 1
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol42/iss1/1