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.

Recommended Citation

Shannon, Bradley Scott. “Should Summary Judgment be Granted?” American University Law Review 58, no. 1 (October 2008): 85-126.