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Race, Gender, “Redlining,” and the Discriminatory Access to Loans, Credit, and Insurance: an Historical and Empirical Analys

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Race, Gender, “Redlining,” and the Discriminatory Access to Loans, Credit, and Insurance: an Historical and Empirical Analys Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship 1996 Race, Gender, “Redlining,” and the Discriminatory Access to Loans, Credit, and Insurance: An Historical and Empirical Analysis of Consumers Who Sued Lenders and Insurers in Federal and State Courts, 1950-1995 Willy E. Rice St. Mary's University School of Law, [email protected] Follow this and additional works at: https://commons.stmarytx.edu/facarticles Part of the Law Commons Recommended Citation Willy E. Rice, Race, Gender, “Redlining,” and the Discriminatory Access to Loans, Credit, and Insurance: An Historical and Empirical Analysis of Consumers Who Sued Lenders and Insurers in Federal and State Courts, 1950-1995, 33 San Diego L. Rev. 583 (1996). This Article is brought to you for free and open access by the School of Law Faculty Scholarship at Digital Commons at St. Mary's University. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. QUESTIONABLE SUMMARY JUDGMENTS, APPEARANCES OF JUDICIAL BIAS, AND INSURANCE DEFENSE IN TEXAS DECLARATORY-JUDGMENT TRIALS: A PROPOSAL AND ARGUMENTS FOR REVISING TEXAS RULES OF CIVIL PROCEDURE 166A(A), 166A(B), AND 166A(I) WILLY E. RICE* I. Introduction ........................................... 536 II. Brief Overview-Federal and Texas's Summary- Judgm entRules ........................................ 570 A. Federal Motions for Summary Judgment .......... 570 B. Texas's "Traditional" Summary-Judgment Motion-Texas Rules of Civil Procedure 166a(a) and 166a(b) ........................................ 574 C. Texas's "No-Evidence" Summary-Judgment Motion-Texas Rule of Civil Procedure 166a(i) .. 577 III. Brief Overview-Texas's Uniform Declaratory Judgm ents A ct ......................................... 582 A. The Purpose and Subject Matter of Declaratory R elief .............................................. 582 B. Whether a Declaratory-Judgment Proceeding Is a "Lawsuit" or a Trial ............................... 585 IV. Texas's Courts' Mandatory Duties and Discretionary Powers When Deciding Whether to Award Summary and Declaratory Judgments ............................ 589 A. Texas's Trial Judges' Duties and Discretionary Powers When Deciding Whether to Award Summary Judgment in Trials Generally ........... 591 * Professor of Law, St. Mary's University School of Law-San Antonio. M.A. 1972, Ph.D. 1975, University of North Carolina at Chapel Hill; Postdoctoral Fellow 1977, The Johns Hopkins University; J.D. 1982, The University of Texas at Austin; and an American Bar Foundation Scholar. ST MARY'S LAW JOURNAL [Vol. 36:535 B. Texas's Trial Judges' Discretionary Powers and Duties-Whether to Award a Declaratory Judgm ent .......................................... 595 C. A Critique-Whether Texas's Courts Have Power to Decide Both Questions of Fact and Law in Declaratory-Judgment Trial ....................... 607 V. Insurance Defense and the Role of Declaratory Judgm ents in Texas .................................... 613 A. Personal Injury Claims and the Scope of Insurers' Obligations Under Liability and Indemnity Insurance Contracts in Texas ...................... 613 B. Texas's Declaratory-Judgment Trials: Insurance Contracts and Rules of Construction and Interpretation ...................................... 620 VI. Insurance Defense and the Abuse of Summary- Judgment Motions in Texas's Declaratory-Judgment Trials ................................................... 622 A. Texas's Trial Courts' Questionable Summary- Judgment Rulings in Declaratory-Judgment Suits. 622 B. Declaratory-Judgment Disputes and Texas Courts of Appeals' Questionable Summary-Judgment D ecisions .......................................... 638 V II. C onclusion ............................................. 648 I. INTRODUCTION Summary proceedings have an exceptionally long history in England. During Antiquity, a disgruntled complainant could file a writ of audita querela' and petition a court of equity for sum- mary relief. Put simply, the plaintiff had to affirm he was exper- iencing or about to experience some "legal oppression."'2 In 1. See Turner v. Davies, 2 Wms. Saund. 137, 148, 85 Eng. Rep. 871, 878-79 n.1 (K.B. 1670) (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *405) (defining audita querela as "an equitable action ... [it] is ... remedial"). 2. Id. An audita querela ... lies for a person who either is in execution, or in danger of being so, upon a judgment, statute-merchant, statute-staple, or recognisance, when he has matter to shew that such execution ought not to have issued, or should not issue ... [and it appears] to have been invented, lest in any case there would be an oppressive defect of justice, where the party has a good defence, but had not, nor has any other means to take advantage of it. 20051 SUMMARY JUDGMENTS addition, the petitioner had to prove he had no other recourse at 3 law. Without doubt, an audita querela hearing was a full-blown trial on the merits rather than just a procedural maneuver.4 And under favorable circumstances,5 a court would award both summary and equitable relief. Courts of equity, however, had no authority "to extend the ground of equitable relief beyond that, which [could] be obtained by audita querela."6 Furthermore, judges were highly un- likely to award summary relief if there were disputed facts.7 By the late 1660s, the ancient and remedial audita querela pro- ceeding had fallen into disrepute as a way to secure summary re- lief, in part because it was too burdensome, inefficient, and expensive. To repeat, a writ of audita querela actually petitioned a court to conduct a complete trial on the merits. But fairly often, a plaintiff only wanted a summary remedy. Perhaps that reason more than any other provides the best explanation of the audita querela's demise.8 In addition, over the centuries, English courts of Id. 3. See id. at 879 (reporting that "[ain audita querela is a commission to the Judges to examine the cause .... And it does not lie where there is any other remedy at law either by plea, or otherwise."). 4. See Supposed Doctrine of Lord Hardwicke and Lord Eldon, C.P. Cooper 507, 638, 47 Eng. Rep. 624, 693 (Ch. 1839) (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *406) (finding that "[when a petitioner] hath [a] good matter to plead, but hath had no opportu- nity of pleading it .... an audita querela lies in the nature of a bill in equity, to be relieved against the oppression"). 5. See Boyton's Case, 3 Co. Rep. 43a, 43b, 76 Eng. Rep. 733, 735 (K.B. 1592) (stating: "In general, [a court] will not put the [petitioner through] the trouble and expense of [a full-blown] audita querela; but will relieve him in a summary way on motion... but where the ground of his application for relief is a release, the execution of which, or some other matter of fact, cannot be clearly ascertained without a trial, the [c]ourt will leave him to his audita querela."). 6. See Supposed Doctrine of Lord Hardwicke and Lord Eldon, C.P. Cooper 507, 638, 47 Eng. Rep. 624, 691 (Ch. 1839) (commenting: "[Courts could only] substitute for that proceeding [a remedy] of a more summary and less expensive nature"). 7. See Underhill v. Devereux, 2 Wins. Saund. 71, 72, 85 Eng. Rep. 715, 739 (K.B. 1670) (observing that courts "will relieve the party upon motion, without putting him to an audita querela; ... but they will never interfere in a summary way, where the fact is disputed"). 8. See Supposed Doctrine of Lord Hardwicke and Lord Eldon, C.P. Cooper 507, 639, 47 Eng. Rep. 624, 693 (Ch. 1839) (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *406) (observing that the writ of audita querela "is a writ of a most remedial nature, and [was apparently] invented [to remove the] oppressive defect of justice, where a party who hath a good defence is too late to make it in the ordinary forms of law. But the indulgence now shewn by the Courts in granting a summary relief upon motion in cases of such evident ST. MARY'S LAW JOURNAL [Vol. 36:535 law became increasingly indulgent and more willing to entertain a simple motion for summary relief.9 During the 1800s, the popularity of summary-judgment practice increased substantially. Consequently, Parliament enacted statutes allowing plaintiffs to file simple affidavits in ex parte proceedings to secure summary relief.1" Two statutes are fairly renowned and worth mentioning. First, England enacted the Charities Procedure Act of 1812, also known as Sir Samuel Romilly's Act." That act allowed multiple divisions12 of England's judiciary to review affida- vits and award summary relief, even if only a smidgen of uncontro- verted evidence suggested a breach of trust or irregularities in 13 charitable trusts. oppression, has almost rendered useless the writ of audita querela, and driven it quite out of practice."). 9. See Turner v. Davies, 2 Wins. Saund., 137, 148, 85 Eng. Rep 871, 880 (K.B. 1670) (analyzing that "the indulgence which of late has been shewn by Courts of law in granting a summary relief upon motion in most cases of evident oppression, for which the only rem- edy formerly was by audita querela, has [caused] this remedy. .. to be seldom [used]. It is however sometimes adopted at present."). 10. Cf. Angus v. Montgomery, 3 Bligh 98, 107-08, 4 Eng. Rep. 541, 545 (H.L. 1821) (stating that "[t]his is a summary proceeding under the statute not according to the ordi- nary course of the Court. The proceeding intended by the Legislature is not one for deter- mining a question of right. In such a case the party must be left to his remedy by the common course of the law ...."). This was a case in which a movant filed a summary complaint under the Act of 16 Geo. II c. 11, s. 24. The movant alleged that irregularities occurred during the election of magistrates and councillors of a Scotch burgh. Id. There was a question of whether, under the provisions of the Act, all the magistrates and council- lors should be parties in the proceedings.
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