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A Different Tack: The Case For A Least Restrictive Means Requirement For Summary Judgment, Joseph Clark

Joseph Clark

This Article adds to the vast literature critical of summary judgment, and to a lesser extent, judgment as a matter of law, as threats to the civil jury right. But it does so with a twist: rather than advocating change within the parameters of the Supreme Court’s standard formalist approach to the Seventh Amendment, it advocates an untested method to reign in both motions: strict scrutiny. The Court’s formalist reasoning has incorrectly deemed these judicial procedures constitutional and through the Case Trilogy, strengthened their ability to take cases from the jury.

But widespread criticism of the Court's formalist reasoning has …