First, I'd like to thank the editors of ELS for asking me to guest blog. I think that blogs can provide valuable points of intellectual interaction and can also be a lot of fun.
A while back, Washington University law professor Margo Schlanger blogged on ELS about trial courts and trial court judicial politics, and I was hoping to revisit this topic. Her Civil Rights Litigation Project goes a long way toward facilitating research on trial courts. Trial courts and access to justice have long been research interests of mine. Between other research projects and teaching, I have been doing some reading on the use of summary judgment by trial court judges and especially empirical examinations of summary judgment decisions.
I was especially intrigued by Harvard law professor Arthur Miller's article in the NYU Law Review - "The Pretrial Rush to Judgment: Are the 'Litigation Explosion,' 'Liability Crises,' and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments?" (2003). It brought up some things that I had thought about during my attorney practice years and had continued to think about during my years of looking at courts from a social science perspective. I won’t go into a full recap of his excellent 150+ page article, but he is basically concerned with the shift in responsibility between jurors and judges in making determinations of fact. He (along with other scholars) even suggests that such a shift, via expanded summary judgment, might undermine the Constitutional right to a jury trial. Certainly, expanded use of summary judgment has important implications for citizens' access to justice.
I recall that during my days of practicing law I would run across cases in which a plaintiff's complaint alleged, for instance, wrongful termination, and then there would be an attached affidavit stating the plaintiff's version of the facts (e.g. alleging that the defendant told plaintiff that he was being fired for an illegal cause). The defendant would then file a motion for summary judgment (or the state equivalent thereof) along with an affidavit stating an alternative version of the facts (e.g. "No, I never said that."). The case would then be dismissed because it did not present any "genuine issue as to any material fact." However, it would seem that the facts were very much at issue.
It seems to me that this type of situation fits within the pattern of events that concern Miller. To be sure, Miller's analysis on summary judgment and what consitutes a genuine issue of material fact is much more in depth than what I can provide here, but I think that our concerns over shifting responsibilities and access to justice are similar. If trial court judges (both federal and state) are expanding summary judgment and thereby taking determinations as to genuine issues of material fact from juries, then this seems to be one of the more compelling academic questions regarding judicial policy making and the expansion of judicial discretion that I have seen in quite a while.
This all leads me to my main point. Given the above, has anyone examined trial court judicial decision making on summary judgment motions in a multivariate regression fashion? I'm thinking of basic theories of judicial decision making such as the attitudinal model or judicial political environment. I haven't found any, although I admit that I haven't spent an incredible amount of time on this search (some basic Lexis searches and what I have read in relevant law review articles on summary judgment). Of course, I've seen lots of articles that provide an empirical examination of summary judgment, but none that take the approach that I discuss above.