Summary Judgment and Gender

Prof. Elizabeth Schneider (Brooklyn Law School) has a very interesting piece about summary judgment and how it might particularly affect female plaintiffs. Elizabeth Schneider SSRN-The Dangers of Summary Judgment: Gender and Federal Civil Litigation, Brooklyn Law School, Legal Studies Paper No. 71 (March 5, 2007).

Summary judgment is an area where there is a tremendous amount of discretion, and discretion can be the locus of hidden discrimination. The question I ask is, where women plaintiffs are involved, or where gender is an issue in the case, how is summary judgment applied?

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There are many subtle ways in which judicial decisionmaking on summary judgment can be problematic: in judicial evaluations of female plaintiff credibility (which the Task Force Reports and other studies have recognized as particular hurdles for women litigants and witnesses); in judicial assessment of the facts of the case or the strength of novel claims or rejection of novel arguments "as a matter of law"; in judicial determination of whether a "reasonable juror" could find for the plaintiff; and in judicial diminution and trivialization of the seriousness of harms suffered by women plaintiffs seeking redress in court.

Id. at 5-7.

And consider expert evidence (or don't consider it):

Another important development is the significant interplay between summary judgment and Daubert on judicial determination of expert evidence. Daubert plays a critical role in summary judgment cases because if the judge gets rid of plaintiff’s expert evidence it makes granting summary judgment easier. Daubert is now viewed as a "summary judgment substitute." * * * Daubert may be the preferred method of District Court resolution since there is greater play for District Court judges and smaller chance of reversal on appeal.

Id. at 17 (footnotes omitted).