Now, Professor Thomas is now breathlessly shocked in another draft article to discover that there is yet another "fatal flaw" of summary judgment procedure.
The Supreme Court has held that a judge can dismiss a case before, during, or after trial if he decides a reasonable jury could not find for the plaintiff. The Court has also held that a judge cannot dismiss a case based on his own view of the sufficiency of the evidence. I contend, however, that judges do exactly that.
The argument is underwhelming.
First, in real life, judges frequently deny summary judgment in cases where the believe that the weight of the evidence favors the party seeking the summary judgment ruling. Summary judgment rules are very hard to secure in run of the mill negligence cases. Summary judgments are more frequently granted in commercial cases, but often because the key disputes of facts in those cases, like interpretation of written contracts, are defined as matters of law. The battle of affidavits process also inherently resolves some credibility issues that would otherwise go to juries, despite the fact that judges are not permitted to resolve directly conflicting affidavits on key factual points (and generally do not).
Second, the notion that judges do not always act in a strictly formalist way, a school of academic commentary on the legal system called "legal realism" is hardly new. It dates to long before Lockner, and almost as far back as the very first law school professors in the late 1800s. Certainly, judicial decision making is colored by their take on the facts of a case. Judging is a human endeavor, and is long as that is true, personal perception will always play a part.
Indeed, the standard for granting a motion for summary judgment, which requires that only "genuine" issues of "material" fact in the eyes of a "reasonable jury" be considered invites the exercise of personal judgment by judges. The fact that juries are unreasonable more often than one might expect does not invalidate a judge's application of the summary judgment standard.
The fact that judging has a human element is hardly a fatal flaw. It is, of course, utterly irrelevant in civil cases which will not be tried by a jury, as is the case in roughly half of all federal civil cases that go to trial. Also, even at trial (where judges have refused to pre-empt decision making by juries because genuine disputes of material fact do exist), judges and juries agree in a very large percentage of cases on the merits. Only if judges are routinely wrong on the merits, and juries would have ruled differently and correctly, is a tendency to grant summary judgment motions in the way alleged a problem. If judges either rule in the same way as a jury would, or rule correctly on the merits while a jury would have ruled differently, then a decision to grant a motion for summary judgment is preferrable to the alternative.
It is also worth recalling, as a footnote, that state courts, where the 7th Amendment does not apply and hence does not create constitutional concerns, are the dominant forum in civil litigation. Roughly 97% of all civil cases were filed in state courts and 89% of the cases filed in federal court were bankruptcies (which are also not subject to the 7th Amendment). Just 0.3% of the non-bankruptcy civil cases in the state were filed in federal court, and half of those that go to trial are not cases where there is a jury demand. More than 85% of civil jury trials take place in state court, as do essentially all probate and divorce cases.
The civil jury trial cases that do wind up in federal court probably are more important than the average state court case. But, academic emphasis on the federal courts in the area of civil procedure is excessive.