Is summary judgment constitutional? Scholars have passionately debated the question in recent years. But they have made an important oversight. Ironically, the issue surrounding summary judgment’s constitutionality that is the most important—whether it violates state constitutions— has received the least scholarly attention.
This Article is the first to consider whether summary judgment is consistent with state constitutional jury trial guarantees. After using the historical framework scholars have invoked to assess whether summary judgment is constitutional at the federal level, it concludes that summary judgment either violates or is in severe tension with several state constitutions.
This Article then examines the texts of state constitutional jury trial provisions and finds that, in several, those texts do not permit summary judgment. The Article also finds it highly questionable whether summary judgment is consistent with a living constitutionalist framework or survives heightened scrutiny.