Author

There seems to be a public perception that the members of the current, often divided, Supreme Court vote for partisan rather than principled reasons. As recent confirmation hearings have become more heated and polarized, this belief has only crystallized. In Active Liberty: Interpreting Our Democratic Constitution, Justice Stephen Breyer challenges this perception through a thoughtful discussion of the constitutional commitments that inform his decisions. This book does not provide a comprehensive theory of constitutional and statutory interpretation; rather, Active Liberty is important because in it, Justice Breyer gives the American public insight into the constitutional themes and values that he draws on when deciding cases. In particular, Justice Breyer focuses on one constitutional value that he believes has been underappreciated: a commitment to democratic participation and self-government which he calls “active liberty.” Although Justice Breyer recognizes that other constitutional values are important, he believes that active liberty should play a more prominent role in constitutional adjudication.

The primary justification for summary judgment is efficiency, but the motion’s efficiency has been largely assumed. Avoiding trials reduces costs, but that savings is only realized when the motion is granted. This Note offers a framework for analyzing the efficiency of summary judgment. If the cost of trials avoided does not exceed the cost of summary judgment motions filed, then summary judgment is inefficient. Modern doctrine places a low production burden on defendants moving for summary judgment and a high production burden on plaintiffs opposing the motion, creating incentives for defendants to file many motions and for plaintiffs to incur substantial costs in opposing them. If the motion is not granted with enough frequency and does not have a positive impact on the settlement rate, then its availability and use may cost more than the trials it avoids. Drawing on available empirical data and assumptions based on the incentives of the parties, this Note goes on to lay out some of the conditions necessary for summary judgment to be efficient and concludes with a call for more empirical investigation into the success rate of summary judgment motions and the costs of litigation.