Should Summary Judgment be Granted?

This article discusses (and criticizes) the recent change from shall to should in Federal Rule of Civil Procedure 56 to describe the standard by which a federal district court is to decide a properly made and supported motion for summary judgment. The article concludes that the text of Rule 56, which formally provided that such a motion shall be granted, cannot plausibly be construed as meaning should ; that this change was not supported by those authorities cited by the Federal Civil Rules Advisory Committee; and that, as a normative matter, should is an inappropriate standard in this context. Federal district courts generally should not have the discretion to deny a proper motion for summary judgment, and current Rule 56 should be amended accordingly