Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?

This article explores summary judgment from historical, empirical, and normative perspectives. It demonstrates that, because Rule 56 as promulgated in 1938 represented a radical transformation of the device, the members of the Advisory Committee had no reliable basis for predicting the consequences of their work had they been inclined to do so, and that in any event the image they projected of that work was tethered to the past. Because existing empirical studies of summary judgment based on reported decisions are unreliable, the article analyzes published studies that rely on data from court files, and it presents new such data for fiscal years 2000–2003 in the Eastern District of Pennsylvania. The article finds that there is sufficiently reliable evidence to believe that the rate of case termination as a result of summary judgment rose substantially from 1960 to 2000, with one plausible (and perhaps conservative) range being from ca. 1.8 percent to ca. 7.7 percent. It also finds evidence that the termination and other activity rates vary, sometimes dramatically, among courts and case types. The latter possibility deserves additional empirical, doctrinal, and normative inquiry since it is reminiscent of experience under Rule 11 in the period 1983–1993 and thus, if confirmed, would prompt serious questions of procedural policy and, ultimately, of equal justice under law.