The Irrepressible Myth of Celotex:Reconsidering Summary JudgmentBurdens Twenty YearsAfter the Trilogy

I. IntroductionThis year marks the twentieth anniversary of three important cases on federal summary judgment. Known as the "trilogy,"1 Matsushita Electric Industries Co. v. Zenith Radio Corp.,2 Anderson v. Liberty Lobby, Inc.,3 and Celotex Corp. v. Catrett4 have had a profound impact on federal litigation. Federal courts have cited these three cases more than any other U.S. Supreme Court decisions.5 Collectively, the trilogy is viewed as a "celebration of summary judgment"6 and a mandate for federal courts to embrace the use of summary judgment to dispose of cases before trial. Among the trilogy, Celotex is widely perceived as the most significant. Martin Redish recently wrote "[o]f the three, Celotex most clearly altered well-established summary judgment practice, and in any event, Celotex, far more than the others, decisively opened the eyes of the federal courts to the propriety of summary judgment in certain cases."8Celotex dealt with the most common summary judgment scenario: when the defendant moves for summary judgment, seeking to win the case without having to endure a potentially costly and risky trial. Celotex'?, immediate impact was to expand the availability of summary judgment as a means for disposing of a plaintiff s claims prior to trial. In particular, Celotex recognized that a defendant could obtain summary judgment not only by putting forth affirmative evidence that the plaintiffs case was meritless, but also by showing that the plaintiff would lack evidence to prove some essential element of her claim.9 Celotex also spoke more generally to how burdens are allocated between the party seeking and the party opposing summary judgment and what materials may be considered in connection with these burdens.10 To this day, Celotex provides the Court's most current instructions on these important questions.Anniversaries are times for reflection.11 Celotex is a significant decision from both theoretical and practical standpoints. It impacts core questions of procedural fairness,12 the proper roles of judges and juries in the federal system,13 the increasing caseloads of the federal judiciary,14 and distributive justice in the federal court system.15 It also provides the blueprint for the basic mechanics of litigating and adjudicating summary judgment motions.16 Over the past two decades, Celotex has become the subject of sustained academic commentary,17 as well as a vital part of any first-year civil procedure course18 or federal courts treatise.19 While Celotex is a necessary authority and indispensable guide for the judges who must resolve summary judgment motions on a day-to-day basis, it remains the subject of conflicting interpretations by federal trial and appellate courts.20The twentieth anniversary of the trilogy provides an important opportunity to reconsider Celotex and its impact on summary judgment burdens. The recent passing of Chief Justice William Rehnquist, who authored the Celotex majority opinion as an Associate Justice, makes this a particularly appropriate time to revisit Celotex. If the empirical evidence is any indication, history will recognize Celotex as among his most significant contributions.21 Like many watershed cases, Celotex raised questions as well as answered them. Although Celotex appeared to establish an orderly sequence of burdens for the moving defendant and the nonmoving plaintiff, it left numerous ambiguities concerning the precise contours of these burdens and what materials may be used to satisfy them. These unanswered questions have given rise to competing myths about Celotex and summary judgment burdens. The justifications offered for the prevailing myths are principally each proponent's policy preferences about how summary judgment procedure ought to operate in the federal system.This Article treats Celotex not as an empty vessel for achieving optimal policy but rather as an object of interpretation. Thus, it takes a more traditional approach-long overdue in this area-that emphasizes what we customarily value when interpreting a decision. …