Summary judgment provides several efficiencies essential to a smoothly running litigation system. Perhaps the most important feature of summary judgment is the "settlement premium" set forth in this Essay. When a motion for summary judgment is denied, the nonmoving party achieves a form of premium that enables a case to settle for an additional amount. Put simply, the settlement value of a case increases when a motion for summary judgment is denied. Thus, denials of summary judgment up the ante in the litigation game. This dynamic is underappreciated by summary judgment critics who over-focus on grants of summary judgment. The summary judgment premium would disappear if a Rule 56 device was discouraged or eliminated and possesses additional positive features. The possible denial of the motion discourages weak or frivolous requests. The substantial cost of a summary judgment motion supplements the efficient deterrent value of the summary judgment premium. A party will be reluctant to file a Rule 56 motion if the risk of loss is unacceptable. Other efficiencies make summary judgment the single most useful pretrial device. Rule 56 efficiencies produce both clarification of the factual dispute and the legal issues presented. Without summary judgment a case would appear to be less certain, making settlement less likely. Summary judgment motions also help jump start the involvement of the trial judge, who until the motion might be the prototypical uninvolved "umpire, " a relatively passive participant in the litigation process and one awaiting a call to a more active role in the case. A similar 'premium" should deter frivolous motions to dismiss. Once the motion to dismiss is denied, the plaintiff should demand a premium in the form of enhanced consideration if the case is settled.
The Efficiency of Summary Judgment,
Loy. U. Chi. L. J.
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