Unearthing Summary Judgment’s Concealed Standard of Review by Jonathan Remy Nash :: SSRN

The common wisdom has it that the appellate standard of review for summary judgment is uniformly de novo. However, the general unreviewability of summary judgment denials renders as dicta most statements about the standard of review for summary judgment denials. This Paper argues that courts of appeals should accord district courts discretion to deny summary judgment in (i) close cases that (ii) turn at least in part on an issue of fact (at least where a jury trial right is available and has been exercised). This standard will have the greatest impact in the limited universe of summary judgment denials that are immediately appealable — those cases where summary judgment is sought by government officials on the basis of immunity from suit. An empirical study of such cases decided by the courts of appeals confirms that the proposed standard would have a substantial effect on the treatment by courts of appeals of summary judgment denials in qualified immunity cases. Beyond the courts of appeals, implementation of the standard would have an effect on the treatment of qualified-immunity-based summary judgment motions by district courts and the Supreme Court.