Suja Thomas (Cincinnati) now has a series of papers defending the role of the jury. (See "Why Summary Judgment is Unconstitutional.") Her latest, "The PSLRA's Seventh Amendment Problem," discusses whether the heightened pleading requirements effectively harm the right to a jury. This paper should be interesting to those of us who may be familiar with the PSLRA, but not with that whole trial or constitution thingy.
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1. Posted by Jake on April 26, 2007 @ 20:14 | Permalink
Oh well, the whole trial or constitution thingy is interesting to some. Thomas advocates a fantasy. Evidently judges should not weed out sham claims or defenses. Even assuming the doubtful claim that English law in 1791 had no equivalent of summary judgment had any merit, the proponent should recognize the English "loser pays" rule in civil litigation serves much the same objective. And even assuming the old English common law judges did not take cases away from juries (and they most certainly did), the English Rule dampened incentives to develop a structured summary judgment procedure of the sort we have today.
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