Volume 78, Number 3

June 2003

The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?

Arthur R. Miller

Although there are demands for procedural “reform” in the face of a perceived “litigation explosion” and “liability crisis,” little empirical research has been done to determine if those fears are legitimate even though a multitude of solutions are being proposed and some have been promulgated. This Article examines the use of summary judgment and the motion to dismiss in light of these increasing concerns about the efficiency of the federal judicial system. Professor Miller analyzes the 1986 Supreme Court summary judgment trilogy and its effect in transforming the procedural device into a method frequently used to dispose of litigation before trial. He studies decisionmaking in the federal courts with regard to the trilogy and expresses concern that courts have extended the use of summary judgment and the motion to dismiss to resolve disputes that are better left to trial and the jury. Courts, Professor Miller argues, too often appear to be placing their interests in the efficient resolution of disputes, concerns about jury capability, and other matters above litigants’ rights to a day in court and jury trial, and he suggests that judicial restraint as well as further Supreme Court guidance is needed to prevent trial courts’ discretion from eclipsing these fundamental rights of litigants.