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.

%d bloggers like this: