The Celotex Initial Burden Standard and an Opportunity to “Revivify” Rule 56

This article provides a pragmatic review of the summary judgment process and offers a new methodological approach to critiquing the Federal Rules of Civil Procedure. Using qualitative empirical methods to focus on the defendant\u27s initial burden standard under the watershed case Celotex v. Catrett, the article calls on two new sets of data - a broad survey of published and unpublished district and appellate court opinions and a focused survey of district court cases from a single federal district court - to evaluate the critical responses to the case. The article finds that those who criticize the Celotex initial burden standard have not accurately predicted how defendants would respond to the change and that those who support it, while not completely vindicated in their views of the overall system, are correct in arguing that other procedural rules cabin defendants\u27 actions. Using these results, this article calls into question how we respond to changes in procedural rules. It argues that the mistaken responses to Celotex are due to a failure to account for the complexity of modern federal litigation when evaluating procedure. Moreover, it argues that such an atomistic approach can adversely affect the way the rules are drafted and amended. Procedural rules cannot be viewed in a vacuum. The article asserts that the rules are a part of a sophisticated process with different interests (attorney fees, judicial ethos, party preferences, etc.) at play; to draft, amend, or critique the rules without an appreciation of these other real-world considerations is to do them a great disservice