Procedural History: The Development of Summary Judgement as Rule 56
Over the last several decades, the Supreme Court rendered several important decisions affecting the scope and use of summary judgment. The 1986 trilogy of summary judgment cases increased the trial court’s discretion in deciding whether to grant a motion and effectively raised a non-moving plaintiff’s burden to demonstrate the existence of a material question of fact while decreasing a moving defendant’s burden to produce evidence of an issue’s absence. The Court’s 1986 decisions confirmed summary judgment’s primary use as a defendant’s remedy. Although summary judgment is now most commonly used to aid defendants, it was initially devised and developed as a plaintiffs’ remedy.
In 1934,after Congress passed the Rules Enabling Act (― “REA”) into law, experts in the field understood that summary judgment would be one of the most important procedural reforms included in the new Federal Rules of Civil Procedure (― “FRCP”). The original purpose of the remedy was to clear federal court dockets and assist poor plaintiffs in bringing actions against the vast resources of corporate defendants. While summary judgment would be new to the federal court system, it was far from an innovative concept—England and several states already employed similar procedures. It was clear by the first draft of the Federal Rules that federal summary judgment would differ from state and foreign summary judgment. However, the extent of these differences would remain unclear until the final draft was completed, nearly four years after Congress passed the REA. There were significant disagreements between the drafters of the Rules—Edson Sunderland and Charles Clark, and the rest of the Advisory Committee members concerning the causes of action to which summary judgment should be applicable, the types of evidence necessary for the remedy, and even the procedure’s constitutionality. This article maps out the history of summary judgment in both state and foreign courts before the REA was passed and its later development into Rule 56.
