Judicial gatekeeping becomes possible only if the judge is given final say on a matter. And while today we take it for granted that judges decide questions of law, it was not until the 1840 case of Games v. Dunn that the U.S. Supreme Court barred a jury from trumping a judge on matters of law.⁽¹⁾ In that case, the Court declared, "When a matter of law is given by the court to the jury, it should be considered conclusive."⁽²⁾ Thus, the distinction between questions of law and questions of fact assumed a new importance. By declaring a pending issue a question of law, a judge now held the power to decide that issue without regard to the jury. This was the critical first step in the development of summary judgment and the power to dispose of an entire case from the bench.

The Precursor to Summary Judgment: Directed Verdict
     In Parks v. Ross (1850)⁽³⁾, the Supreme Court asserted the judge's role as arbiter of evidentiary sufficiency by forbidding jurors to accept the validity of a material fact unsupported by evidence. Thus, if there were no evidence to support a fact central to the plaintiff's case, the judge could instruct the jury to find for the defendant.⁽⁴⁾ The Court held that this taking of the case from the jury was not a violation of the Constitutional right to a jury trial. Proponents of the directed verdict maintained that the right to a jury trial did not include the right to have a jury determine matters of law. Thus, if the evidence evinces no issue of fact, a plaintiff has no right to a jury decision.⁽⁵⁾

Enter Summary Judgment
     Both Rule 50 and Rule 56 of the Federal Rules of Civil Procedure invite the court to make the same determination: that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Historically, courts have demonstrated a willingness to direct a verdict for the defendant when the plaintiff's evidence at trial is insufficient to sustain the plaintiff's claim. However, prior to the mid-1980s, the use of summary judgment was relatively rare. This limited use may well have reflected hesitancy regarding the timing of a motion, which, if granted, would deny the nonmovant an opportunity to present its case.

     Though the widespread use of summary judgments is a recent development, the first instance of modern summary judgment procedure appears in England's 1855 Summary Procedure on Bills and Exchange Act, which sanctioned limited use of the procedure to reduce expense resulting from frivolous defenses.  The Judicature Act of 1873 widely extended the accepted use; nonetheless, the procedure still remained available only to plaintiffs (creditors) seeking to collect debts.⁽⁶⁾

     Before the advent of summary judgment procedure in this country, a trial was the only means available of obtaining a legal judgment. Crowded dockets led to agitation for summary procedure reform in the federal system as early as the 1880s while concurrently, several states passed statutes modeled on the English rule. These statutes, like the English model, were limited to plaintiffs' use in cases with documentary evidence, and the procedure was invoked sparingly.⁽⁷⁾

     In 1929, Professors Clark and Samenow published the seminal article The Summary Judgment advocating an expanded use of the procedure as a remedy for overburdened dockets.⁽⁸⁾ They decried judicial hostility to applying the procedure beyond the realm of debt cases and predicted the coming of a more vital tool.

     The procedural reform movement culminated in the 1934 Rules Enabling Act; Rule 56 was subsequently drafted as an invitation to judicial gatekeeping. The new rule allowed defendants as well as plaintiffs to move for summary judgment and extended the procedure to all cases. In addition, Rule 56 required more than an affidavit declaring the grounds for opposition.⁽⁹⁾ Rule 56 went into effect on September 16, 1938.

     In spite of the new rule, judicial caution remained a nearly hegemonic approach, likely the result of an otherwise laudable "institutional concern with preserving parties' rights."⁽¹⁰⁾ As recently as 1975, the Second Circuit noted that summary judgment "is a drastic device since its prophylactic function, when exercised, cuts off a party's right to present his case to a jury."⁽¹¹⁾

     With the call for a more "managerial" bench in the 1960s, summary judgment was briefly seen as a potentially powerful tool for disposing of issues and simplifying complex litigation. Yet, the Supreme Court quashed this hope in 1962, holding that "summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the conspirators, and hostile witnesses thicken the plot."⁽¹²⁾

      In 1970, in Adickes v. S.H. Kress & Co., the Court continued its cautious approach to summary judgment.⁽¹³⁾ The Adickes Court reversed the lower court's grant of summary judgment, holding that the defendant-movant had not met its burden of affirmatively refuting an essential element of the plaintiff's case. The plaintiff accused the defendant store of conspiring with the police to arrest her, alleging as part of her theory that an officer was in the store at the same time. Because the defendant, upon moving for summary judgment, was unable to establish that there were no officers in the store, the Court held that a jury might infer a conspiracy.⁽¹⁴⁾ By holding that the nonmovant was not bound to respond when the movant failed to meet its initial burden, the Court maintained the systemic hostility toward summary judgment.

      Questions on the exact procedure called for under Rule 56 likely contributed to judicial aversion to summary judgment. Who bore what burdens, and when? What was a "genuine issue" or a "material fact"? Ambiguities in the rule, restrictive interpretations, and institutional presumptions favoring jury trials combined to leave summary judgment regarded, in Chief Justice Rehnquist's words, "as a disfavored procedural shortcut" fifty years after its initial passage.⁽¹⁵⁾

     The sea change came in 1986 when the Supreme Court issued three decisions (the so-called trilogy) restructuring the burdens of plaintiffs and defendants in the summary judgment process.⁽¹⁶⁾ The Court equated the standard for granting summary judgment with the directed verdict standard of FRCP 50(a). This meant that the governing standard for burden of persuasion applied at the summary judgment stage, requiring the plaintiff to proffer affirmative evidence to defeat the defendant's motion for summary judgment, and suggesting that the court assess the plaintiff's chance of prevailing at trial. The three cases redefined the Court's view of the value of summary judgment; a procedure, which Rehnquist said, should be seen as "an integral part of the Federal Rules as a whole, which [is] designed 'to secure the just, speedy, and inexpensive determination of every action.'"⁽¹⁷⁾In calling for expanded use of summary judgment, the Court effectively reversed the procedure's original intent. In the nineteenth century, summary procedure was created to dispose efficiently of frivolous defenses; in the mid-1980s summary judgment evolved into a powerful tool for the defense.

     The Celotex court held that a defendant-movant who does not bear the burden at trail, could meet its initial burden merely by pointing to the absence of evidence to support some essential element of the plaintiff's claim. This decision comes as an apparent contradiction to the Adickes notion that a movant must negate an essential element of the non-movant's case.⁽¹⁸⁾ Celotex sought summary judgment, asserting that the plaintiff had not produced evidence to establish that her deceased husband had been harmed by exposure to Celotex's asbestos products. Though the Court found that summary judgment was appropriate in this case, Celotex does not stand for the notion that one-line, conclusory summary judgment motions are sufficient.⁽¹⁹⁾ Just what that initial burden is remains a question after Celotex.⁽²⁰⁾

     In Clark v. Coats & Clark, Inc.,⁽²¹⁾ the Eleventh Circuit attempted to reconcile Adickes and Celotex. Rather than viewing the Supreme Court's holding in these cases to be in opposition, the Eleventh Circuit interpreted Celotex to provide another means by which a movant might meet its initial summary judgment burden where it does not have the ultimate burden of proof at trial. The Clark court recognized that such an alternative is necessary in the unusual event that neither party could prove either the affirmative or the negative of an essential element of the claim. Celotex could not negate the plaintiff's claim that the decedent had been exposed to Celotex's asbestos products just as the plaintiff could not affirm it. Thus, summary judgment remains a viable option in those unusual cases in which a defendant cannot meet the Adickes standard of disproving essential elements.⁽²²⁾

Summary Judgment and Circumstantial Evidence
     A summary judgment motion by the defense raises a difficult question in circumstantial evidence cases. Though the Rule 56 standard is similar to the Rule 50 standard, some state courts have rejected the notion that they are identical with respect to circumstantial evidence. The Minnesota Court of Appeals has stated, "Where the evidence is circumstantial and sustains two or more inconsistent inferences with equal weight, a directed verdict may be appropriate (because the burden of proof had not been sustained and a contrary verdict would be based on speculation), but a summary judgment would not be."⁽²³⁾

     Compare the above with Matsushita, in which the U.S. Supreme Court willingly characterized one inference of the circumstantial evidence as "implausible" (in spite of five experts' testimony to the contrary) and sustained summary judgment for the defendant. Plaintiff Zenith alleged a predatory pricing conspiracy on the part of 24 Japanese companies over a period of 30 years. Zenith proffered evidence of numerous parallel actions by the defendants, from which it argued a jury could infer a conspiracy. The district court granted the defendants summary judgment, deeming the plaintiff's theory unreasonable. The appellate court reversed as to 21 defendants, holding that Zenith had sufficient evidence to allow a jury to draw an inference of conspiracy. The Supreme Court reversed this ruling, relying heavily on numerous economics articles arguing that predatory pricing schemes are rarely successful. Based on this information, the Court concluded the defendants had "no rational economic motive to conspire."⁽²⁴⁾

     The Court further stated that even if an inference of conspiracy had been plausible, the defendant's conduct was "consistent with other, equally plausible explanations" and that alone was enough to sustain a summary judgment for the defendants.⁽²⁵⁾ That is, if the judge determines that circumstantial evidence places two inferences in equipoise, summary judgment for the defendant is appropriate unless the plaintiff produces more evidence.

     This is only one possible reading of Matsushita, and by no means has it carried the day. For example, this circumstantial evidence rule may be limited to antitrust cases. In any event, this broad reading of Matsushita echoes the long discredited (but never overruled) "equal inferences" directed verdict rule of the 1933 case of Pennsylvania R.R. v. Chamberlain.⁽²⁶⁾ At least at the federal level, the convergence of Rule 56 standards with those of Rule 50 seems complete in circumstantial evidence cases. At the state level, the situation remains murky.

Summary Judgment as Gatekeeping
     Summary judgment is in essence a gatekeeping tool of the judiciary: it allows judges to filter out cases that do not merit (or would not benefit from) consideration by a jury. Judges and lawyers have struggled with the application of summary judgment just as courtroom actors are beginning to wrangle with judicial gatekeeping regarding expert testimony. The questions treated above concerning summary judgment, such as burden of proof, choosing a standard for making determinations, and the appropriateness of judicial intervention, are all issues that arise in the context of Daubert gatekeeping as well.

Summary Judgment and Admissibility Rulings
     A judge's decision whether or not to admit expert opinion aimed at showing causation is often intertwined with summary judgment proceedings. Is one opinion admitted to prove causation, is that automatically enough to carry the case to the jury? Or can a judge still make a summary judgment ruling by considering the whole body of evidence and determining that no reasonable jury could rely on the long opinion as a foundation for a decision? If there is more than one opinion admitted does a trial judge have any power to weigh conflicting admissible opinions? The nexus of admissibility rulings and summary judgment can be quite complex; for example, what if a judge chooses to characterize an admissible opinion as a "scintilla," and what exactly does this vague quantum of measurement mean?

     In a Daubert gatekeeping context summary judgment can come into play in three major ways:

(1) A trial judge decides that no opinions offered to show causation are admissible. Summary judgment follows as a matter of course.

(2) A judge finds one expert opinion to be reliable, but there is an incomplete "fit," such that the opinion does not carry to the ultimate issue. In the absence of other evidence, the judge rules on a summary judgment motion based on failure to establish causation.

(3) A judge admits one expert opinion that passes the reliability and "fit" prongs of the Daubert test. Is this lone opinion enough to carry the case to the jury? Can the trial judge consider the full spectrum of opinions and weigh the power of the admitted opinion? If the judge finds that the lone opinion would be an insufficient foundation for a jury finding, can she throw out the case on summary judgment?

1. 14 Pet. (39 U.S.) 322, 326 (1840), as cited in William Wirt Blume, Origin and Development of the Directed Verdict, 48 Mich. L. Rev. 555, 570 (1950).
2. Id.
3. 11 How. (52 U.S.) 361, 372-373, as cited in Blume, supra note 1, at 570.
4. Id. at 571.
5. Id. at 573-574.
6. William W. Schwarzer, Alan Hirsch, and David J Barrrans, The Analysis and Decision of Summary Judgment Motions: A Monograph on Rule 56 of the Federal Rules of Civil Procedure, 139 F.R.D. 441, 446 (1992).
7. Id.
8. 38 Yale L.J. 423 (1929).
9. The 1963 amendment to Rule 56(e) made explicit that the party opposing summary judgment could not simply rely on the pleadings.
10. Schwarzer et al., supra note 6, at 448.
11. Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975) (as cited in Schwarzer et al., supra note 6, at 448).
12. Poller v. CBS, 368 U.S. 464, 473 (1962).
13. 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
14. James V. Chin, Clark v. Coats & Clark, Inc.: The Eleventh Circuit Clarifies the Initial Burden in a Motion for Summary Judgment, 26 Ga. L. Rev. 1009, 1011 (1992).
15. Celotex v. Catrett, 477 U.S. 317, 327 (1986).
16. Matsushita v. Zenith, 475 U.S. 574 (1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986); and Celotex, 477 U.S. 317.
17. 477 U.S. at 327 citing FRCP 1.
18. Melissa L. Nelken, One Step Forward, Two Steps Back: Summary Judgment After Celotex, 40 Hastings L. J. 53, 71-72 (1988).
19. 477 U.S. at 328 (White, J., concurring).
20. Nelken, supra note 18, at 62-63.
21. 865 F.2d 1237 (11^th Cir. 1989).
22. Chin, supra note 12, at 1022, 1023. The Fifth circuit has endorsed the Clark interpretation of the rules governing summary judgment. See Russ v. Int'l Paper Co., 943 F.2d 589 (5^th Cir. 1991).
23. Howie v. Thomas, 514 N.W.2d 822, 825 (Minn. Ct. App. 1994) (citing Louwagie v. Witco Chemical Corp., 378 N.W.2d 63, 68 (1985)).
24. 475 U.S. at 596.
25. Id. at 596-597.
26. Pennsylvania R.R. v Chamberlain, 288 U.S. 333 (1933), stood for the principle that if evidence equally supported opposing inferences and a verdict for the plaintiff would be the result of jury speculation, then a directed verdict may be appropriate. The holding was complicated by the Supreme Court's consideration of the reliability of a witness for the plaintiff.