The 25th Anniversary of the Summary Judgment Trilogy: Much Ado About Very Little

Abstract

The twenty-fifth anniversary of the Supreme Court’s famous summary judgment trilogy in 1986 offers an opportunity to assess the impact of this trilogy on federal practice. This study sets out to answer a few relatively simple questions: are federal courts doing anything more than citing Celotex as the leading Rule 56 precedent, and if so, are they indeed following the analytical burden-shifting framework so carefully and elaborately set out by Justices Rehnquist and Brennan? A sub-textual inquiry was: do federal judges understand Celotex, any more than our largely confused and confounded first year law students? In addition, this study also researched the extent to which the trilogy’s second leg ― Anderson v. Liberty Lobby, Inc. ― has resulted in numerous trial-by-affidavit nightmares suggested by Justice Brennan in his dissent.

The results of this study seem to suggest that in a surprising number of summary judgment cases, federal courts don’t even cite Celotex. If this were not shocking enough, in the remaining universe of decisions where courts do cite Celotex, some federal judges do not seem to acknowledge, understand, or apply the elaborate Celotex conceptual framework. The data also seem to suggest that in at least many cases, federal judges ― as they did pre-Celotex ― continue to decide summary judgment motions on a kind-of gestalt “tennis match” mode of analysis.

The various FJC studies of post-trilogy summary judgment practice have demonstrated that the disposition rates (that is, favorable grants of summary judgment motions) have not increased in statistically significant ways in the aftermath of the trilogy. Along with the FJC studies, this very modest study further suggests that the trilogy’s central Celotex decision likewise has had small impact on the ways in which judges analyze and decide summary judgment motions. In addition, the Anderson decision’s core evidentiary holding has been replicated in exactly three other somewhat anomalous contexts, in the past 25 years ― clearly averting any substantial judicial crisis.

Surveying these realities, it is difficult not to conclude that the Court’s summary judgment trilogy, along with its attendant hype, has been much ado about very little. Against this backdrop, practitioners who must file summary judgment motions may take some comfort in realizing that in most instances in federal court, at least, the lawyers need not overly fret over shifting burdens of production, persuasion, and proof, so long as the attorneys proffer something in the record for a judge to consider (except in those outlying federal courts that have chosen to dun attorneys who do not point to the specific evidence). And while some erudite judges on the federal bench may justifiably take pride in wending their way through a recitation and application of the Celotex standards, judges also may take comfort in knowing that they also largely will not be dunned by appellate courts for failure to recite or properly apply Celotex.