Summary Judgement in the Shadow of Erie

Summary judgment, long a centerpiece of federal procedural practice, is at something of a crossroads, as efforts to improve the process of making and opposing summary judgment motions by amending Federal Rule of Civil Procedure 56 stand in contrast to challenges to the procedure, including an academic challenge to the constitutionality of the procedure.' This essay addresses one particular challenge to federal summary judgment practice: the possibility of a successful challenge to Rule 56 of the Federal Rules of Civil Procedure, pursuant to Erie Railroad v. Tompkins2 and its progeny. Part II of this essay addresses differences between summary judgment as practiced in federal courts pursuant to Federal Rule 56 and summary judgment as practiced in state courts, focusing in particular on differences in the ways the federal courts and some state courts allocate the burdens on moving and non-moving parties. Part III suggests that these differences are problematic under Erie and its progeny, and in particular under the Supreme Court's 2001 decision in Semtek International, Inc. v. Lockheed Martin Corp. Part III looks ahead to the Erie case decided in the Supreme Court's 2010 term and considers the possible impact of that case on Federal Rule 56.6 The essay concludes that, in light of the Supreme Court's Erie jurisprudence, the future of uniform summary judgment practice in federal courts is at least uncertain