THE JUDGE'S ROLE AS GATEKEEPER:
RESPONSIBILITIES & POWERS
Summary Judgment and Judicial Gatekeeping
by James D. Walsh, Christopher T. Newkirk, and Eric D. Brown -
Harvard Law School '99
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
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
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
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
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
As the standards and application of both summary judgment
rulings and expert opinion gatekeeping are redefined and refined by
higher courts, the bonds that connect summary judgment rulings and
Daubert gatekeeping will shift and settle. For now, judges must
navigate the relatively uncharted waters of admissibility rulings
before reaching the as yet murky depths of 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).
3. 11 How. (52 U.S.) 361, 372-373, as cited in Blume, supra note 1,
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
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 (11th 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 (5th 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.