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Future of Summary Judgment
Foreword: Summary Judgment and the Influence of Federal Rulemaking

33 Pages Posted: 23 Jul 2010 Last revised: 18 Nov 2010

Bernadette Bollas Genetin

University of Akron - School of Law

Date Written: July 22, 2010


This essay provides an overview of symposium articles on The Future of Summary Judgment that were submitted in connection with the Section on Litigation’s program on summary judgment at the 2010 Annual Meeting of the Association of American Law Schools. Contributions to the symposium by Professors Edward Brunet, Stephen Burbank, Jeffrey Cooper, Steven Gensler, and Linda Mullenix explore issues regarding (1) amendments to Federal Rule 56 that are set to take effect on December 1, 2010; (2) emerging safeguards to prevent improvident grant of summary judgment; (3) the potential of summary judgment to impact interrelated aspects of the pretrial process, including the 12(b)(6) motion to dismiss and class action litigation; and (4) the future of the federal standard for summary judgment in diversity cases. Although the articles explore a wide range of issues relating to summary judgment, a dominant subtext is the interplay between summary judgment and federal rulemaking, including the impact of federal rulemaking on summary judgment, the effect of the transsubstantive assumption of the Rules Enabling Act, and the limits of the substantive rights prohibition of the Rules Enabling Act.

The essay discusses also (1) how failure to amend Rule 56, absent consensus, leads to substantial variation in summary judgment practice in the federal courts because federal rulemakers respond to lack of consensus by abandoning proposed Rule change or by providing broad discretion to trial judges regarding normative decisions; and (2) how the justices’ views on the importance of uniform application of Federal Rules in diversity cases led to the splintered decisions in the Supreme Court’s recent Erie decision, Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co.

Keywords: summary judgment, federal rulemaking, litigation, Federal Rule 56, pretrial process, Erie, pleading, Rule Enabling Act, federal courts, Twombly, Iqbal, Shady Grove

JEL Classification: K10, K4, K41

Suggested Citation

Genetin, Bernadette Bollas, Future of Summary Judgment Foreword: Summary Judgment and the Influence of Federal Rulemaking (July 22, 2010). Akron Law Review, Vol. 43, No. 4, 2010; U of Akron Legal Studies Research Paper No. 10-08. Available at SSRN: or

Bernadette Bollas Genetin (Contact Author)

University of Akron - School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States
330-972-6939 (Phone)

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