As a teacher of Civil Procedure, Women and the Law and Battered Women and the Law, and a former civil rights lawyer, much of my lawyering, teaching and writing over many years has been at the intersection of gender and civil procedure. I have long been interested in the way in which procedural disputes are a locus of "hidden" issues of gender, have written about the ways in which feminist legal theory can deepen our understanding of Civil Procedure¹ and teach Procedure with a casebook that highlights gender issues.² Many state and federal Gender Bias Task Force Reports have documented the ways in which gender-bias impacts on procedure.³ I am currently exploring the impact of gender on one of the most important procedural devices in civil procedure - summary judgment.

       Summary judgment is an area where there has been considerable change over the last 15 years, most explicitly in the federal courts. Historically summary judgment was disfavored, and was not to be granted easily. A motion for summary judgment under F.R.C.P. 56 was to have been construed in favor of the non-movant, because of the preference for jury trial. Findings of material issues of fact, so as to preclude the entrance of summary judgment were to be found on issues such as credibility, and weight of evidence. But the trilogy of Supreme Court decisions in 1986, Matsushita, ⁴ Liberty Lobby⁵ and Celotex⁶ - changed that - and the federal courts have followed sway. It appears that trial judges are more likely to grant summary judgment - depriving litigants of the opportunity for jury trial (and in light of the traditional composition of the judiciary-frequently more diverse decision makers). ⁷ Although state courts have operated under their own rules, there are signs from some state courts that the same changes hold true. ⁸

       This move to summary judgment has had troubling consequences. In a 1998 law review article, Judge Patricia Wald, then of the D.C. Circuit, expressed concern about the development and direction of summary judgment in the federal courts. ⁹ She emphasized the importance of "ensuring that summary judgment stays within its proper boundaries, rather than on encouraging its unimpeded growth. Its expansion across subject matter boundaries and its frequent conversion from a careful calculus of factual disputes (or the lack thereof) to something more like a gestalt verdict based on an early snapshot of the case have turned it into a potential juggernaut which, if not carefully monitored, could threaten the relatively small residue of civil trials that remain." ¹⁰ There are, of course, other views. In a recent article on sexual harassment, District Judge Shira Scheindlin approached summary judgment more sympathetically and questioned the assumption that juries, not judges, should be evaluating sexual harassment cases. ¹¹

       But, regardless of one's view of summary judgment in theory or as a matter of policy, summary judgment is necessarily a very case-specific and fact and law-specific determination. Summary judgment decision making at the trial level, and appellate review of grants of summary judgment, necessarily involve subtle assessment of the strength of the case (most usually the plaintiff's) on what may be a very abbreviated record. Trial judge decision making about summary judgment requires assessment of the strength of the plaintiff's legal case in the context of discovery. Although conventional application of summary judgment meant that the judge should not grant it if there were material issues of fact in dispute, for issues of fact and credibility were to be assessed by the jury - these days judges, spurred on by the Supreme Court, pressure to clear dockets, and perhaps even dislike of the claims filed in court, whether sexual harassment, or Family Medical Leave Act cases in federal court, or tort actions for damages for rape in state court - grant summary judgment. Summary judgment is an area where there is a tremendous amount of discretion, and discretion can be the locus of hidden discrimination. The question I want to ask is, where women plaintiffs are involved, or where gender is an issue in the case, is it more likely that summary judgment will be granted?

       Several state and federal Gender Bias Task Force Reports have answered that question affirmatively at least in employment discrimination cases. These reports concluded that indeed summary judgment was more likely to be granted to defendants in employment discrimination cases with women plaintiffs. For example, the Eighth and Ninth Circuit Task Force Reports specifically discuss how gender plays role in summary judgment in employment discrimination cases. The Eighth Circuit Task Force conducted a survey that revealed that "one-half of plaintiffs' attorneys and 10% of defendants' attorneys reported that summary judgment was granted too easily to defendants in discrimination cases." ¹² In addition, judges reported that "summary judgments were granted to defendants much more frequently than plaintiffs" and that "summary judgment in sex discrimination cases was relatively rare for plaintiffs." ¹³ The Ninth Circuit Gender Bias Task Force had similar findings as the Eighth Circuit. The Ninth Circuit reported that judges were impatient with sex-based employment discrimination claims, and indeed, the report found that a review of published opinions showed that "the majority of such claims filed over the past five years have been dismissed by the district courts, either by granting the defendant's motion to dismiss or for summary judgment." ¹⁴ Several recent law review articles have documented and analyzed these developments. ¹⁵

       My hypothesis is - and I am currently researching this - that gender comes into play in the exercise of summary judgment in many other cases as well and often in more "hidden" forms. There are myriad and subtle ways that this can happen - in evaluations of female plaintiff credibility, (which the Task Force Reports and other studies have recognized as particular hurdles for women litigants and witnesses), in assessment of the strength of novel claims or rejection of novel arguments "as a matter of law" and in diminution and trivialization of the seriousness of harms suffered by women plaintiffs seeking redress in court. ¹⁶ My project is to explore this hypothesis in a number of ways. I hope to raise important questions for judges, law professors and lawyers about the possible interrelationship between gender and summary judgment.

¹Elizabeth M. Schneider, Gendering and Engendering Process, 61 U. CIN. L. REV.1223 (1993); see generally, Symposium, Feminist Jurisprudence and Procedure, 61 U. CIN. L. REV. 1139 (1993). Back to Text

²Stephen C. Yeazell, Civil Procedure (5 ed. 2000) Back to Text

³Forty-five states have had a Gender Bias Task Force. See, National Center for State Courts website, www.ncsc.dni.us/is/clrhouse/Gbstat99.html. See also, Final Report and Recommendations of the Eighth Circuit Gender Fairness Task Force, 31 CREIGHTON L. REV. 9 (1997) [hereinafter Eighth Circuit Report]; The Effects of Gender in the Federal Courts: The Final Report of the Ninth Circuit Gender Bias Task Force: The Quality of Justice, 67 S. CAL. L. REV. 745 (1994) [hereinafter Ninth Circuit Report]. Back to Text

⁴Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 US 574 (1986). Back to Text

⁵Anderson v. Liberty Lobby, 477 US 242 (1986). Back to Text

⁶Celotex v. Catrett, 477 US 317 (1986). Back to Text

⁷Patricia Wald, Summary Judgment at Sixty, 76 TEX. L. REV. 1897, 1942 (1998). ("My review of the D.C. Circuit's summary judgment rulings over a six-month period suggests that judges will stretch to make summary judgment apply even in borderline cases which, a decade ago, might have been thought indisputably trial-worthy. It also suggests that appellate courts will, by and large, uphold these dispositions, unless they think the trial judge got the law wrong.") Back to Text

⁸See e.g., Robert Clore, Texas Rule of Civil Procedure 166a(i): A New Weapon for Texas Defendants, 29 St. Mary's L.J. 813, 821 (1998). Back to Text

⁹Id. Back to Text

¹⁰Id. at 1917. Back to Text

¹¹Shira A. Scheindlin and John Elofson, Judges, Juries and Sexual Harassment, 17 YALE L. & POL'Y REV. 813, 852 (1999). ("For all their virtues, juries cannot contribute much to the effort to define sexual harassment better - by granting summary judgment in proper cases and carefully reviewing jury findings, however, judges can"). (page 852) Back to Text

¹²Eighth Circuit Report, supra note 3 at 73. Back to Text

¹³Id. at 74. Back to Text

¹⁴Ninth Circuit Report, supra note 3 at 886. Back to Text

¹⁵Theresa M. Beiner, The Misuse of Summary Judgment in Hostile Environment Cases, 34 WAKE FOREST L. REV. 71 (1999); Eric Schnapper, "Some of Them Still Don't Get It: Hostile Work Environment Litigation In the Lower Courts," 1999 U. CHI. LEGAL F. 277 (1999). Back to Text

¹⁶See generally, Ninth Circuit Report, supra note 3; Report of the Second Circuit Task Force on Gender, Racial and Ethnic Fairness in the Courts, 1997 ANN. SURV. AM. L. 1 (1997); Lynn Hecht Schafran, Credibility in the Court: Why Is There a Gender Gap? , 34 Judges Journal 5 (1995). Back to Text