This Article seeks to allow judges to resolve factual disputes where the record is complete more often than judges currently do. The article proposes to distinguish between bench trial cases and jury trial cases. The argument is that in bench trial cases the judge is already going to be adjudicating both the legal and the factual aspects of the case, and if the record is complete, the judge should have the option of exercising summary judgment at an earlier time in the trial. The article notes that summary judgment cannot be used when the credibility of testimony is suspect but that summary judgment can still be used when there is further material evidence not yet discovered, since a motion for summary judgment can be stayed until the discovery process is complete. Judges can already make use of the process of summary judgment under the current law and federal regulations, and Guggenheim review circuit decisions to back up the idea that judges have this ability already.
Jack A. Guggenheim,
In Summary It Makes Sense: A Proposal to Substantially Expand the Role of Summary Judgment in Nonjury Cases,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol43/iss2/4