Revising Civil Rule 56: Judge Mark R. Kravitz and the Rules Enabling Act

This contribution uses the history of amending Federal Rule of Civil Procedure 56, “Summary Judgment,” to pay tribute to Mark R. Kravitz and to the Rules Enabling Act process itself. The three central examples involve discretion to deny summary judgment despite the lack of a genuine dispute as to any material fact, the choice whether to prescribe a detailed “point–counterpoint” procedure for presenting and opposing the motion, and the effect of failure to respond to a motion in one of the modes prescribed by the rule. These topics are intrinsically important. The ways in which the Civil Rules Advisory Committee and the Standing Committee on Rules of Practice and Procedure grappled with these topics provide strong reassurances about the capacities of the Enabling Act process to work through difficult problems both by work internal to the committees and by considering, understanding, and adopting the wise advice offered by public comments and testimony at the public hearings