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42 Hastings Const. L.Q. [i] (2014-2015)

handle is hein.journals/hascq42 and id is 1 raw text is: HASTINGS CONSTITUTIONAL LAW QUARTERLY VOLUME 42 FALL 2014 NUMBER 1 Table of Contents ARTICLES PROBABILITY, CONFIDENCE, AND THE CONSTITUTIONALITY OF SUMMARY JUDGMENT by L uke M eier ................................................................................................ 1 Professor Suja Thomas has famously asserted that summary judgment violates the Seventh Amendment guarantee of a right to a jury trial in civil cases. Most commentators and courts, however, continue to believe that summary judgment is constitutional and that the Supreme Court in Fidelity & Deposit Co. v. United States resolved this issue. This Article argues that this entire debate is misguided. The current debate has proceeded under the assumption that every summary judgment raises identical Seventh Amendment concerns. The reality, however, is more complex. This Article distinguishes between the concepts of probability and confidence, both of which can be the basis of a summary judgment. When summary judgment is entered pursuant to a confidence analysis, no Seventh Amendment violation occurs. This conclusion is confirmed by existing Supreme Court case law. When, however, summary judgment is entered pursuant to a probability analysis, Seventh Amendment concerns arise. Contrary to popular belief, the Supreme Court has not addressed these Seventh Amendment concerns. INCOHERENT AND INDEFENSIBLE: AN INTERDISCIPLINARY CRITIQUE OF THE SUPREME COURT'S VOID-FOR-VAGUENESS DOCTRINE by Ryan M cCarl ............................................................................................ 73 The Supreme Court's void-for-vagueness (or simply vagueness) doctrine, rooted in the substantive due process guarantee of the Fifth and Fourteenth Amendments, is occasionally used to strike down statutes that fail to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute and encourage arbitrary and erratic arrests and convictions.

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