Friday, January 26, 2007

Studying Summary Judgment ... and District Courts

A professor at the Empirical Legal Studies blog muses about summary judgment. Jeff Yates, Empirical Legal Studies: Trial courts, judicial politics, and summary judgment ..., Empirical Legal Studies, Jan. 21, 2007.

Yates highly recommends Arthur R. Miller, The Pretrial Rush to Judgment: Are the 'Litigation Explosion,' 'Liability Crisis,' and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments? 78 N.Y.U. L. Rev. 982 (2003). Yates observes that in practice he saw cases decided on summary judgment even when the plaintiffs' and defendants' affidavits gave very different views of a situation -- i.e., when there was a substantial issue of material fact. Yates asks whether there have been empirical studies of substantial judgment.

A number of people have commented, often suggesting sources. One (Tracy Lightcap) says that Wolf V. Heydebrand & Carroll Seron, Rationalizing Justice: The Political Economy of Federal District Courts (1990) is "a neglected classic." Lightcap says:

H & S throughly theorize the entire question of what they call "technocratic justice", develop hypotheses about it and testing them using readily available data. The basic idea is that the increasingly rationalized environment of governmental and business decisionmaking have called for a less legalistic, more administrative form of judicial action. It's a good deal more complex - Heydebrand did the theory and he isn't the man for a straightforward exposition - but it's far and away the best explanation for why summary proceedings have come to be more and more the method of judicial choice.

Why this book hasn't had a larger audience is a puzzle. I would suppose part of the reason is that it largely ignores appellate courts; H & S, quite rightly, don't think that's where the action is. It is trial courts that actually respond to social environments; appellate courts are reacting at second hand and are too episodic in control. * * * The analysis also stretches beyond the data occasionally. Still, if you want a fairly well developed theory and a sophisticated empirical analysis of why summary procedures have come to dominate so much of the legal playing field, here's where you start to look.
Yates replied that he went to the library and looked up the book right away. He speculates that one reason it might be underused is that it's a book, and today's researchers often focus on material they can pull up online -- LexisNexis, Westlaw, or the web.

Well, now you're online, but you're hearing about a book. It's in our law library, if you're curious: KF8754 .H45 1990 at Classified Stacks.

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