Document Type


Publication Date



Is summary judgment constitutional? Scholars have passionately debated the question in recent years. But they have made an important oversight. State courts hear more than fifty times as many cases a year as federal courts do. Whatever state courts decide with regard to summary judgment will affect vastly more litigants than what federal courts do. At the same time, states have largely adopted federal summary judgment standards and cases interpreting them. Yet scholars considering whether summary judgment is constitutional have focused all of their attention on the Seventh Amendment. They have entirely failed to consider state constitutional jury trial guarantees. This matters doctrinally because state constitutions use different language to enshrine the right to a jury trial than the Seventh Amendment, and those provisions have a different history than the Seventh Amendment. Ironically, the issue surrounding summary judgment's constitutionality that is the most important-whether it violates state constitutions has received the least scholarly attention.