I couldn't skip this one. Professor Suja Thomas has written a law review claiming that summary judgment under Rule 56 violates the Seventh Amendment because no similar procedure existed under the Common Law.
Under the Common Law in 1791, there was no procedure for the judge to determine the facts. Of course, there were demurrers of various flavors. It seems clear from her own paper that regardless of who read the facts and who read the law, judges did have the power to throw out cases.
I'm not seeing the importance of this circular law/fact distinction in the question. The question to me is simply whether a judge can throw out a case. Under Common Law, he could.
Furthermore, lets not forget, the judge acts as a gatekeeper for the evidence even in a jury trial, so Thomas's assertion that his consideration of the evidence is some strange animal doesn't fly. Plus, summary judgment does not allow the judge to "weigh" the evidence. Strictly speaking, if there is a dispute of a material fact, trial goes forward.
In sum, there may not be an exactly analogous power under Common Law, but there are no new powers given to the judge; it's just a hodge podge of other existing powers.
Quite frankly, this article defines "academic" in both the literal and pejorative senses of the word. Rule 56 will stand one way or another.
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