The Celotex Initial Burden Standard and an Opportunity to 'Revivify' Rule 56

Brooke D. Coleman

Seattle University School of Law

August 31, 2008

Southern Illinois University Law Journal, Vol. 32, p. 295, 2007-2008

This article provides a pragmatic review of the summary judgment process and offers a new methodological approach to critiquing the Federal Rules of Civil Procedure. Using qualitative empirical methods to focus on the defendant's initial burden standard under the watershed case Celotex v. Catrett, the article calls on two new sets of data - a broad survey of published and unpublished district and appellate court opinions and a focused survey of district court cases from a single federal district court - to evaluate the critical responses to the case. The article finds that those who criticize the Celotex initial burden standard have not accurately predicted how defendants would respond to the change and that those who support it, while not completely vindicated in their views of the overall system, are correct in arguing that other procedural rules cabin defendants' actions. Using these results, this article calls into question how we respond to changes in procedural rules. It argues that the mistaken responses to Celotex are due to a failure to account for the complexity of modern federal litigation when evaluating procedure. Moreover, it argues that such an atomistic approach can adversely affect the way the rules are drafted and amended. Procedural rules cannot be viewed in a vacuum. The article asserts that the rules are a part of a sophisticated process with different interests (attorney fees, judicial ethos, party preferences, etc.) at play; to draft, amend, or critique the rules without an appreciation of these other real-world considerations is to do them a great disservice.

Number of Pages in PDF File: 51

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Date posted: September 3, 2011  

Suggested Citation

Coleman, Brooke D., The Celotex Initial Burden Standard and an Opportunity to 'Revivify' Rule 56 (August 31, 2008). Southern Illinois University Law Journal, Vol. 32, p. 295, 2007-2008. Available at SSRN: https://ssrn.com/abstract=1261649

Contact Information

Brooke Coleman (Contact Author)
Seattle University School of Law ( email )
901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
United States

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