The Supreme Court upended summary judgment doctrine with a trilogy of cases in 1986. At the time--and largely persisting into current prevailing wisdom--it was assumed that the 1986 changes made summary judgment comparatively more available and, thus, of greater benefit to defendants. While empirical evidence remains somewhat scant, emerging findings paint a far more complex and nuanced picture.
A recent contribution to this research literature comes from Jonathan Nash (Emory) and Daniel Sokol (USC). In The Summary Judgment Revolution that Wasn't, the authors lever six separate (though related) datasets that draw from federal court decisions in three discrete areas (antitrust, civil rights, and securities regulation) and exploit the 1986 trilogy with pre- and post-intervention comparisons. At bottom, the paper finds "no evidence of the trilogy influencing summary judgment decision making in securities regulation, and at best mixed evidence of such an effect in civil rights cases. In contrast, we find that the trilogy did have a strong statistically significant effect on decision making in antitrust cases, at both the district court and court of appeals levels." The abstract follows.
"The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision making in terms of wins and losses for plaintiffs. Shifts in wins and losses and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in antitrust, an ambiguous effect in civil rights cases, and no effect in securities regulation. We also find that, in the trilogy’s wake, antitrust appellate cases were far more likely to cite trilogy cases—and in particular the one trilogy case that was an antitrust case—than appellate cases in the other areas. This suggests that the lone trilogy case that arose in antitrust had an effect on decision making in that field, but that the trilogy had a limited effect across other substantive areas. This finding differs from Twombly and Iqbal where an antitrust decision ultimately reshaped the entire body of law around motions to dismiss."
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