Judge Mark Bennett’s* modest proposal

If you care about employment litigation in the federal courts, or even litigation in general in the federal courts, you must read Judge Mark Bennett’s  Essay: From the “No Spittin’, No Cussin’ and No Summary Judgment”Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four-Decade Perspective, 57 N.Y.L. Sch. L. Rev. 685 (2012–2013).

Here is the abstract:

Nearly seventy-five years after its birth, the time has come to bury summary
judgment. The funeral should be swift, dignified, and joyous. The autopsy
would reveal that the cause of death was abuse and overuse by my federal
judge colleagues. Summary judgment abuse and overuse occurs in all types of
cases, but is especially magnified in employment discrimination cases. This
problem is exacerbated by the daily ritual of appellate courts affirming
summary judgment grants to employers, often without comment, at a rate
that far exceeds any other substantive area of federal law. These beliefs are
based on my four-decade career in employment discrimination as a trial and
appellate lawyer (for both employees and employers), adjunct law professor,
author, speaker, federal magistrate judge, and district court judge.
Unfortunately, my colleagues have become increasingly unfriendly to plaintiffs’
employment discrimination claims. I believe there are six primary reasons for
this “unfriendliness” or what many scholars have observed as “hostility”: 1)
too many frivolous employment discrimination lawsuits; 2) an overworked
federal judiciary; 3) increased sophistication of employers; 4) increasingly
subtle discrimination; 5) implicit bias in judicial decisions; and 6) a shift
among judges from trial judging to case managing. If I were anointed Grand
Poobah3 of federal civil procedure for a day, my first act would be to eliminate
summary judgment—at least for a five- to ten-year experimental period.
The time has come to recognize that summary judgment has become too
expensive, too time-consuming for the parties and the judiciary, and too likely
to unfairly deprive parties—usually plaintiffs—of their constitutional and
statutory rights to trial by jury. I am willing to throw out the baby with the
bathwater because the culture of unjustly granting summary judgment is far
too ingrained in the federal judiciary to reverse course. There is simply no
empirical evidence that summary judgment is efficient or fair. Failing
elimination of summary judgment, dramatic modifications to Rule 56 of the
Federal Rules of Civil Procedure should be made to help eliminate its disparate
and unfair impact.

There are three specific things I need to say about Judge Bennett’s piece.  Here they are:

First, it is truly an essay.  I happen to know that Judge Bennett wrote the article in his own voice and without the help of a law clerk.  As I told him privately, his offering is a beautiful bit of writing and he should write essays more often.  So, if you like fine writing, legal or otherwise, read this article.

Second, Judge Bennett knows that Rule 56 is not going to be abolished, but his case for getting rid of the Rule is in reality a deftly reasoned argument for more judicious use of it by judges and practitioners.  He makes a strong case.

Third, for civil cases, Judge Bennett believes there are two types of judges.  We might call type 1 the “trial” judge who venerates the jury trial.  And then, we might call type 2 the “administrative” judge who manages cases. Judge Bennett’s taxonomy is probably correct.  Unlike Judge Bennett, and for civil cases, I am not at all certain that we should venerate the jury trial and lament its passing.  Some things simply outlive their utility.  Perhaps that is what the outside world is telling trial judges and trial practitioners when it comes to civil jury trials in the federal courts.

In summary, if you care about civil trial practice in the federal courts, read the judge’s thoughtful essay.   It is both provocative and practical.  If nothing else, the next time you file, defend or decide a summary judgment motion in federal court, you will be much better prepared.


*Mark W. Bennett is a U.S. District Judge in the Northern District of Iowa.  One might think that this Iowa district is a sleepy little one. In fact, the Northern District of Iowa has led the ninety-four districts in trials per judge per year more often than any other district over the past decade.

6 responses

  1. I love all these discussion of civil procedure. One of my primary areas of interest.

    While my inexperience greatly limits the value of my comments, I figure if law graduates with similar experience can teach law school, I can trot out my views in blog comments.

    Judge Bennett admits to have no real complaints regarding the language of the rule, and who could? “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” That rule, properly applied, seems like the only rational approach to litigation. Given that the jury’s role is to find facts, if there are no genuine factual disputes as to material issues such that a given party is already entitled to judgment as a matter of law, proceeding to trial seems enormously wasteful.

    So, I think you are right to characterize the argument as one for restrained use. I think the argument would have been more persuasive if either (1) it would have not focused so intently on one specific sort of case or (2) the argument about getting rid of Rule 56 would have been limited to that type of case and others like it, where it is potentially unsuited.

    I don’t know what kind of cases Rule 56 is good for and what kind of cases it’s bad for. My instincts tell me it is well-suited for trademark/tradedress infringement cases. This idea isn’t totally foreign—Judge Bennett describes the now-gone elevated standard for Rule 56 motions in the Eight Circuit, and at one point he seems to hint at this idea, though I can’t find it now.

    The jury is clearly important to Judge Bennett, and I’ll start by recognizing what I view as his best point:

    Trial by jury has constitutional underpinnings—summary judgment does not. As Judge Hornby wrote, “[T]here is no constitutional right to summary judgment, but there is to jury trial. Federal judges should not be reluctant to send parties to trial.”

    This simple point is not to be taken lightly.

    Given my originalist tendencies, I hate to pick on the Hamilton and de Tocqueville quotes, or the Rehnquist argument, but the arguments implicit in the block quotes don’t seem to be supported by the modern jury system. At the time of the founding, Hamilton also argued (successfully) that the jury had the power to say what the law is, at least in a given case. I don’t know how Judge Bennett feels about this historical role of the jury, but his argument would be better if he favored it. If the jury has the power and duty to say what the law is, then MSJ becomes arguably inappropriate because the jury is deprived of the chance to fulfill this function. They don’t get to nullify the law. The Zenger case could be decided against Zenger via MSJ because there was no dispute of material fact:

    Hamilton conceded Zenger’s publication of the papers but claimed that truth was a defense. Under the “law on the books,” this argument was unsound. The well-established rule was: The greater the truth, the greater the libel. Chief Justice De Lancey responded, “A libel is not to be justified; for it is nevertheless a libel that it is true.”

    A Brief History of the Criminal Jury in the United States., 61 U. Chi. L. Rev. 867, 873.

    This argument is intriguing. But I’m not sure the author is willing to make it. That idea is not exactly en vogue, and it is arguably not workable or desirable. My point is that, stripped of this context, citing to Hamilton’s ringing platitudes regarding the role of the jury is unpersuasive. The de Tocqueville quote arguably applies with more force, but the experience for jurors and juror candidates is not always as fulfilling or as educational as it is in Judge Bennett’s courtroom. See id. at 927–28 (“One of us recently received a summons for jury duty, then spent a day with dozens of his fellow citizens in a jury room with two television sets playing on different channels. One of our fellow citizens, a taxi driver, reported that he had purchased a dress shirt for the occasion. Neither this taxi driver nor anyone else, however, was called from the jury room to offer his wisdom on matters of importance to the community. Perhaps some of the people who waited all day in this jury room ended the experience with the sense of gratification (or inspiration) to which a citizen who participates in public affairs is entitled. The final sentence of the information sheet that we received upon reporting for duty reminded us that we should. It read: ‘Please be assured that even if you do not serve on a trial, just by being available you have made it necessary for all parties appearing in court to revert to a bench trial, settle by agreement, plea bargain, voluntarily dismiss, etc., thereby saving the court’s time, and making it possible for our system of justice to work.'”).

    All that to say, while I respect the jury’s constitutional pedigree and value it for that sake alone, I find its intrinsic worth suspect.

    The MSJ “premium” discussion is interesting. I recently got to play judge—hired by a firm to review two cross-motions for summary judgment. I reviewed the motions and the exhibits, then wrote a mock opinion. I was one of three temporary law clerks put on this project. The purpose was simple. The lawyers wanted a preview of the pending motions, which in turn would help them make decisions related to settlement. Essentially, the lawyers wanted to know if they were poised to fail. If so, they could settle now and avoid paying a “summary judgment premium” or even losing the whole case. This little anecdote doesn’t do much to rebut Judge Bennett’s skepticism; if the concern over paying a premium had had an effect, the weaker of the two cross-motions should not have been filed. But I think it illustrates that in the real world, attorneys are thinking about the effect of losing an MSJ, and in a different case they might not file one likely to lose.

    Was there no empirical evidence cited to support the assertion that MSJs are not (or are) efficient? I didn’t see any, and I was looking. Logic suggests the MSJ is a mechanism that would make litigation more expeditious. This, coupled with the value-laden motivations of folks who argue over MSJs, makes me skeptical of conclusory claims that the device is inefficient, even when repeated ad nauseum and by very bright individuals with much experience.

  2. Rich, I have been thinking about this for a couple of days. Thinking can be a dangerous thing, but also beneficial. Some members of the political branches might want to try it some time.

    When I was in practice, I practiced a lot of employment law, usually on the defense side. I made a lot of summary judgment motions, and won most of them. I probably won a couple that I shouldn’t have. I lost one that I really thought I should have won, but we won at trial so the harm was in the extra use of resources (and maybe it was a triable case — the jury voted 10-2 in our favor, which was good enough for a civil verdict in California).

    Sometimes plaintiffs just don’t have a case, but you could never get it dismissed on the pleadings (of course, I didn’t have Iqbal on my side). A lot of those cases were cases under Section 301 of the LMRA. Now a lot of times employees in unions would wind up in the office of a solo lawyer or a very small firm and have a tale of woe about how badly the company had treated him (they were all hims). The problem is that they hadn’t grieved it with the union, or they had and the union had done its best and there was no resolution in the employee’s favor.

    Most of the time, these general practice lawyers didn’t know the law on this subject. They heard a pretty good tale of woe and took the case, figuring it had some settlement value. So they’d file in state court, and I would promptly get it removed to federal court on pre-emption grounds. This was an immediate wake-up call, because the plaintiffs’ lawyers HATED federal court. So soon thereafter I’d have a talk with the plaintiff’s lawyer about why he didn’t have a case. Unless he could show that the union had breached its duty of fair representation (which he never could) he had no case against the company. Now sometimes I thought that the employee really had gotten a bad deal. I could usually nag the company (usually the phone company) into offering a couple of grand in settlement with the argument that they’d spend a lot more than that to get rid of the case. Our firm had plenty of work and I figured a few bucks in the employee’s pocket and 1/3 that much in the lawyer’s pocket and the world would be a better place. The employee would get some slight satisfaction of having “won” and have some money for Christmas presents, and the phone company wouldn’t have to pass along 10 times that amount to its customers to pay for the defense of the case.

    But of course you had the stubborn sorts who just weren’t going to listen to a kid like me that they didn’t have a case. So we’d take a few depositions and then I’d move for summary judgment and win. They just didn’t have a case. If we had tried it and federal judge who was awake for 50% of the trial would have pitched it at halftime. Rule 56 is there for those kinds of cases.

    But the employment discrimination cases are different. I won a few summary judgment motions that I probably shouldn’t have. It was a funny thing, but often those motions seemed to turn on whether the employee could produce any direct evidence of animus. It’s the rare manager who will ‘fess up and say “well, we fired her because we don’t like women/people over 40/of a particular ethnic group” etc.

    Usually the evidence was a lot more subtle than that. The plaintiff might have been one of only 2 women in a group of 40. She gets fired and replaced by a man. Prima facie case. The employer points to poor performance reviews as the reason for the firing. The burden is now on the plaintiff to show that this is a pretext.

    Here is where things break down. A lot of times the employer can get summary judgment because of the poor performance reviews and the lack of any direct evidence of animus. But suppose her account is that the manager was always dogging me, I got written up for stuff that nobody else did, I got all the cruddy tasks that nobody else wanted and of course it was hard to look good, etc.

    It might not be a great case for the plaintiff, but it really turns on whether the finder of fact believes her or believes her supervisor who says she was a lousy employee. The jury is entitled to see them on the stand and size one of them up as a liar.

    A criminal law analogy might be that a gunman waits behind the bushes and shoots the victim. He is arrested and never says a thing to the police and doesn’t take the stand. The issue on the charge of first degree murder is whether there was premeditation. Would any judge dismiss that charge at the close of the prosecution’s case on the grounds that he never admitted that he was lying in wait? Of course not.

    Rule 56 is not for weeding out weak cases. It’s for weeding out hopeless cases.

  3. Pat,

    Thanks for taking the time to provide your experiences and insights.

    In the employment discrimination situation, my experience is that we seldom see cases where the material fact in dispute is essentially a credibility dispute between the plaintiff and one person from the employer. Employers have gotten very sophisticated in “papering” cases with perspectives from multiple people.

    In any event, I agree with you that Rule 56 is not intended to weed out weak cases, but, rather, the hopeless ones. The problem of course is honestly assessing whether the case is merely weak or entirely hopeless. Frankly, that’s one of the reasons I employ career law clerks.

    All the best.


  4. Rich, thanks for your response. It’s certainly a positive development that employers have gotten better at papering decisions like that. Thank God the money and effort didn’t go into boosting employee morale or something like that. Best, Pat.

  5. That would be wrong!

    An efficient economy, such as the one Judge Posner envisions (I suspect), must suck the soul out of employees. What else are they for?

    All the best.


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