Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 6 of 6
Full-Text Articles in Law
Summary Judgment In The Shadow Of Erie, Jeffrey O. Cooper
Summary Judgment In The Shadow Of Erie, Jeffrey O. Cooper
Akron Law Review
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. Tompkins 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 …
Dropping The Spear: The Case For Enhanced Summary Judgment Prior To Class Certification, Linda S. Mullenix
Dropping The Spear: The Case For Enhanced Summary Judgment Prior To Class Certification, Linda S. Mullenix
Akron Law Review
This brief article makes the case for enhanced judicial scrutiny of summary judgment motions prior to the class certification decision. This argument is congruent (and convergent) with the Supreme Court‘s summary judgment trilogy, the Court‘s twin pleading decisions in Twombly and Iqbal, the Third Circuit‘s decision in Hydrogen Peroxide, and the suggestions from various quarters that courts ought to evaluate the merits of proposed class actions during the class certification process.to evaluate the merits of proposed class actions during the class certification process. Summary judgment prior to class certification, then, is a logical―and desirable―extension of these trends. This article argues …
Summary Judgment, Pleading, And The Future Of Transsubstantive Procedure, Stephen B. Burbank
Summary Judgment, Pleading, And The Future Of Transsubstantive Procedure, Stephen B. Burbank
Akron Law Review
David Berger Professor for the Administration of Justice, University of Pennsylvania Law School. This article is based on remarks made at the 2010 meeting of the AALS Section on Litigation.
Six Summary Judgment Safeguards, Edward Brunet
Six Summary Judgment Safeguards, Edward Brunet
Akron Law Review
This article sets forth a more optimistic assessment of the current status of summary judgment. Numerous potential safeguards deter improper grants of summary judgment motions and serve to temper trial judges who are prone to rule favorably on summary judgment requests. While some of the safeguards act more as ineffectual clichés or slogans, others provide a set of significant deterrents to overly adventuresome treatment of Rule 56 motions. The goal of this article is to critique six possible summary judgment safeguards and, in so doing, to determine whether the state of contemporary summary judgment is as bleak as leading critics …
Must, Should, Shall, Steven S. Gensler
Must, Should, Shall, Steven S. Gensler
Akron Law Review
This Essay has three parts. Parts I and II look backward. Part I tells the story of the switch from ―shall‖ to ―should‖ in 2007. Part II then explains the events that led the Advisory Committee to propose the amendment that, if it takes effect as scheduled on December 1, 2010, will restore ―shall‖ to the text of Rule 56. Part III looks forward. It addresses a single, critical question: how much discretion to deny summary judgment will trial judges have once ―shall‖ is restored? The answer is this: with the restoration of ―shall,‖ trial courts will return to whatever …
Symposium: The Future Of Summary Judgment Foreword - Summary Judgment And The Influence Of Federal Rulemaking, Bernadette Bollas Genetin
Symposium: The Future Of Summary Judgment Foreword - Summary Judgment And The Influence Of Federal Rulemaking, Bernadette Bollas Genetin
Akron Law Review
In this review of the evolving role of summary judgment, Professor Steven Gensler provides insight into whether Rule 56(c) give judges discretion to deny summary judgment even if the preconditions of Rule 56(c) have been met, i.e., if there is no genuine issue of material fact and judgment as a matter of law could be entered, and Professor Edward Brunet engages directly the important debate regarding intemperate use of summary judgment to deny potentially meritorious claims, contending that currently available ―safeguards‖ can prevent inappropriate grant of summary judgment. Professor Stephen Burbank and Professor Linda Mullenix enlarge the discussion to consider …