[*] Senior Appellate Attorney, Office of General Counsel, U.S. Equal Employment Opportunity Commission, Washington, D.C. J.D., 1985, Creighton University. This Article was written in the author's private capacity. No official support or endorsement by the United States Equal Employment Opportunity Commission or any other agency of the United States government is intended or should be inferred. Return to text.

[1] Fidelity & Deposit Co. v. United States, 187 U.S. 315, 320 (1902) (quoted in Samuel Issacharoff & George Loewenstein, Second Thoughts About Summary Judgment, 100 YALE L.J. 73, 76 (1990)). Return to text.

[2] See Issacharoff & Loewenstein, supra note 1, at 76 (discussing adoption of the Federal Rules and their impact on summary judgment). Return to text.

[3] Issacharoff & Loewenstein, supra note 1, at 77 (citing Colby v. Klune, 178 F.2d 872, 873 (2d Cir. 1949)). Return to text.

[4] Armco Steel Corp. v. Realty Inv. Co., 273 F.2d 483, 484 (8th Cir. 1960) (cited in 9A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2532, at 307 (1995)). Return to text.

[5] See Issacharoff & Loewenstein, supra note 1, at 89 (asserting that "summary judgment has moved beyond its originally intended role as a guarantor of the existence of material issues to be resolved at trial and has been transformed into a mechanism to assess plaintiff's likelihood of prevailing at trial"); Comment, What a Difference ADEA Makes: Why Disparate Impact Theory Should Not Apply to the Age Discrimination in Employment Act, 74 N.C. L. REV. 267, 319-20 nn.313-14 (1995) (citing to a pronounced increase in the use of the summary judgment procedure). Return to text.

[6] There are strong indications in many recent decisions that courts have essentially collapsed the fact-finding function into the summary judgment procedure and have thereby converted summary judgment into a "mini-trial" on the merits. See Ann C. McGinley, Credulous Courts and the Tortured Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. REV. 203, 229 (1993) (stressing that the summary judgment procedure has been interpreted "to permit courts to draw inferences in defendants' favor, to weigh evidence, to decide the credibility of witnesses, and to require plaintiffs to prove their cases at the summary judgment stage") (citations omitted). Return to text.

[7] Miller v. Federal Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir. 1990). Return to text.

[8] This is true even in civil rights cases, which typically involve "subtle questions of credibility and intent that only a factfinder faced with a live witness should decide." McGinley, supra note 6, at 208 n.19 (citing to cases demonstrating a tendency on the part of courts to grant summary judgment "more aggressively in civil rights cases"); see also Issacharoff & Loewenstein, supra note 1, at 88-89 n.84 (citing to several employment discrimination cases in asserting that "[c]ourts have shown a new willingness to resolve issues of intent or motive at the summary judgment stage"). Return to text.

[9] See Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066 (1988); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). Return to text.

[10] Compare Anderson, 477 U.S. at 252 (discussing plaintiff's burden as nonmoving party) with Celotex Corp., 477 U.S. at 323 (discussing defendant's burden as moving party). Return to text.

[11] Anderson, 477 U.S. at 250-52. Return to text.

[12] See Issacharoff & Loewenstein, supra note 1, at 87 ("As a consequence of the trilogy, the Court appears to have transformed summary judgment from a mechanism for assuring a modicum of genuine dispute in cases set for trial to a full dress rehearsal for trial with legal burdens and evidentiary standards to match those that would apply at trial."); McGinley, supra note 6, at 222-23 (arguing that the trilogy "encourages, if not requires, judges to weigh the evidence," while it forces plaintiffs to "present concrete evidence of the defendants' lack of credibility in response to summary judgment motions"). Return to text.

[13] Issacharoff & Loewenstein, supra note 1, at 78-79; see Amendments to the Federal Rules of Civil Procedure, 97 F.R.D. 165 (1983). Return to text.

[14] See McGinley, supra note 6, at 208 n.19 (stressing that "even before the trilogy, a number of courts seemed headed toward the improper use of summary judgment"). Return to text.

[15] See, e.g., William W. Schwarzer et al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 450 (1991). Return to text.

[16] Frank J. Cavaliere, The Recent "Respectability" of Summary Judgments and Directed Verdicts in Intentional Age Discrimination Cases: ADEA Case Analysis Through the Supreme Court's Summary Judgment "Prism," 41 CLEV. ST. L. REV. 103, 107 (1993) (trilogy "placed courts in an era where summary judgments have become respectable"); McGinley, supra note 6, at 221 (referring to the "new summary judgment"). Return to text.

[17] Rule 50(a) provides that a court may grant "judgment as a matter of law" against a party "[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." FED. R. CIV. P. 50(a). Rule 50(b) provides that the motion may be renewed and granted after a jury has returned a verdict. Historically, motions under these provisions were described as a motion for directed verdict—in the case of Rule 50(a)—and a motion for judgment notwithstanding the verdict—in the case of Rule 50(b). FED. R. CIV. P. 50(b). The 1991 amendments to Rule 50 eliminated the dual terminology and opted for the single label of "judgment as a matter of law" to describe motions made under both provisions. See 5A JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE ¶ 50.07(2) (2d ed. 1995). Return to text.

[18] Issacharoff & Loewenstein, supra note 1, at 87. Return to text.

[19] See infra notes 96-100 and accompanying text (discussing standard). It should be noted that the standard for granting judgment as a matter of law under Rule 50 is not the same standard that applies to a motion for a new trial under Rule 59. See 11 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2806, at 63 (1995). In considering a Rule 59 motion, "the judge is free to weigh the evidence for himself." Id. at 67. The judge may set aside the verdict and order a new trial "even though there is substantial evidence to support [the verdict]." Id. at 65. This Article focuses solely on the relationship between the summary judgment and Rule 50 procedures. Return to text.

[20] Summary judgment and judgment as a matter of law under Rule 50 are legally available to both plaintiffs and defendants. Plaintiffs, however, rarely obtain summary judgment and are rarely granted judgment under Rule 50. FED. R. CIV. P. 50. In practice, these are devices by which defendants can circumvent or trump the fact-finding process. See Issacharoff & Loewenstein, supra note 1, at 75, 92 (noting that summary judgment is rarely sought or obtained by plaintiffs and that "liberalized summary judgment inhibits the filing of otherwise meritorious suits and results in a wealth transfer from plaintiffs as a class to defendants as a class"); 5A MOORE, supra note 17, ¶ 50.02(1), at 50-36 ("The courts are reluctant to grant a judgment as a matter of law in favor of the party having the burden of persuasion."). Return to text.

[21] Greenleaf v. Birth, 34 U.S. (9 Pet.) 292, 299 (1835). Return to text.

[22] William W. Blume, Origin and Development of the Directed Verdict, 48 MICH. L. REV. 555, 589 (1950). Return to text.

[23] Southern Ry. Co. v. Walters, 284 U.S. 190, 194 (1931). For a thorough history of the development of the directed verdict, see Blume, supra note 22. Return to text.

[24] 9A WRIGHT & MILLER, supra note 4, § 2521, at 240. Return to text.

[25] Id. Return to text.

[26] Id. As stated supra note 17, the current rule uses the term "judgment as a matter of law" to refer to motions under both subsections (a) and (b). It is firmly established that the same standards apply to the granting of motions under the respective provisions. See id. § 2524, at 249-50. Return to text.

[27] Issacharoff & Loewenstein, supra note 1, at 76. Return to text.

[28] Id. (quoting An Act To Regulate the Practice of Courts of Law, ch. 231, 1912 N.J. Laws 377, 380; 2 N.J. COMP. STAT. §§ 15, 16 (Supp. 1915)). Return to text.

[29] Issacharoff & Loewenstein, supra note 1, at 76. Return to text.

[30] See 10 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2711, at 557 (1995). Return to text.

[31] Issacharoff & Loewenstein, supra note 1, at 76. Return to text.

[32] FED. R. CIV. P. 56 advisory committee notes, 1937 adoption. Return to text.

[33] Id. Return to text.

[34] Issacharoff & Loewenstein, supra note 1, at 76. Return to text.

[35] 10 WRIGHT ET AL., supra note 30, § 2713.1, at 613-14. Return to text.

[36] Compare Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 250 (1940) ("[Rule 50] was adopted for the purpose of speeding litigation and preventing unnecessary retrials.") with Bland v. Norfolk & S. R.R., 406 F.2d 863, 866 (4th Cir. 1969) ("[T]he function of a motion for summary judgment is . . . to conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy and efficient summary disposition."). Return to text.

[37] Fischer Constr. Co. v. Firemen's Fund Ins. Co., 420 F.2d 271, 275-76 (10th Cir. 1969). Return to text.

[38] There were concerns raised as to whether the granting of a directed verdict contravened the right to a jury trial under the Seventh Amendment. Those concerns were put to rest by the Supreme Court's decision in Galloway v. United States, 319 U.S. 372 (1943). Courts fully embraced the view that "no constitutional question arises when the court withdraws from the jury a case in which there is no issue of fact requiring the jury's determination." Manaia v. Potomac Elec. Power Co., 268 F.2d 793, 799 (4th Cir.) (stressing that the power of the court to withdraw such cases from the jury "is a protective restriction as necessary to the vigorous functioning of the jury system as preservation of the prerogatives of the jury"), cert. denied, 361 U.S. 913 (1959) (quoted in 9A WRIGHT & MILLER, supra note 4, § 2522, at 246). Return to text.

[39] See Edward H. Cooper, Directions for Directed Verdicts: A Compass for Federal Courts, 55 MINN. L. REV. 903, 920-21 (1971); Blume, supra note 22, at 581; 9A WRIGHT & MILLER, supra note 4, § 2524. Return to text.

[40] See, e.g., Pennsylvania R.R. v. Chamberlain, 288 U.S. 333, 343 (1933). Return to text.

[41] Rutherford v. Illinois Cent. R.R., 278 F.2d 310, 312 (5th Cir.), cert. denied, 364 U.S. 922 (1960). Return to text.

[42] Issacharoff & Loewenstein, supra note 1, at 77 (stressing that "[f]rom its inception, federal judges treated summary judgment warily"); Schwarzer et al., supra note 15, at 450 (noting that the "[p]erceived judicial hostility to summary judgment motions and the onerous burdens of proof imposed on a moving party discouraged use of the summary judgment procedure, even in cases in which it might have been appropriate"). Return to text.

[43] E.g., Dolgow v. Anderson, 438 F.2d 825, 830 (2d Cir. 1970). Return to text.

[44] Colby v. Klune, 178 F.2d 872, 873 (2nd Cir. 1949). Return to text.

[45] Arnstein v. Porter, 154 F.2d 464, 475 n.34 (2d Cir. 1946) (quoting Sprague v. Vogt, 150 F.2d 795 (8th Cir. 1945)). For a discussion of the Second Circuit's standard, see Issacharoff & Loewenstein, supra note 1, at 77. Return to text.

[46] Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). Return to text.

[47] Id. Return to text.

[48] Williams v. Chick, 373 F.2d 330, 331 (8th Cir. 1967) (adding that "[r]ecovery must be barred beyond any discernible circumstances"). Return to text.

[49] See, e.g., Washington Post Co. v. Keogh, 365 F.2d 965, 967 (D.C. Cir. 1966), cert. denied, 385 U.S. 1011 (1967). Return to text.

[50] See, e.g., Aetna Ins. Co. v. Cooper Wells & Co., 234 F.2d 342, 344 (6th Cir. 1956). Return to text.

[51] Schwarzer et al., supra note 15, at 450 (discussing Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)). Return to text.

[52] See, e.g., Poller v. CBS, Inc., 368 U.S. 464, 464 (1962).

We believe that summary procedures should be used sparingly in complex . . . litigation where motive and intent play leading roles. . . . It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of even handed justice.
Id. at 473. Return to text.

[53] See, e.g., Ayala v. Secretary of Health, Educ., & Welfare, 51 F.R.D. 505, 507 (D. Puerto Rico 1971). Return to text.

[54] See, e.g., Blackhawk Heating & Plumbing Co. v. Driver, 433 F.2d 1137, 1141 (D.C. Cir. 1970); see also New Home Appliance Ctr., Inc. v. Thompson, 250 F.2d 881, 883 (10th Cir. 1957) ("[S]ummary judgment is available to avoid expensive trials of frivolous claims."). Return to text.

[55] See, e.g., Kim v. Coppin State College, 662 F.2d 1055, 1059 (4th Cir. 1981) (stressing that the legal standards for summary judgment and directed verdict were different in that, at the summary judgment stage, "the district court must give the benefit of the doubt to the party who asserts he can prove a dubious proposition at trial" while, in considering a motion for a directed verdict, "the district court has had the benefit of seeing what the parties alleged they could prove prior to trial tested in the crucible of open court"). Return to text.

[56] 190 F.2d 910 (4th Cir.), cert. denied, 342 U.S. 887 (1951). Return to text.

[57] Id. at 910. Return to text.

[58] Id. Return to text.

[59] Id. at 915. Return to text.

[60] Williams v. Chick, 373 F.2d 330, 331-32 (8th Cir. 1967) (quoting Pierce, 190 F.2d at 915). Return to text.

[61] Hughes v. American Jawa, Ltd., 529 F.2d 21, 25 (8th Cir. 1976) (stressing that "[t]he District Court must deny the motion for summary judgment after finding a genuine factual dispute even if it is convinced that the party opposing the motion is unlikely to prevail at trial"). Return to text.

[62] Roberts v. Browning, 610 F.2d 528, 536 (8th Cir. 1979). Return to text.

[63] 718 F.2d 1334 (5th Cir. 1983). Return to text.

[64] Id. at 1341. Return to text.

[65] Id. at 1340. Return to text.

[66] Id. at 1341. See also United Rubber, Cork, Linoleum & Plastic Workers v. Lee Nat'l Corp., 323 F. Supp. 1181, 1187 (S.D.N.Y. 1971) (denying summary judgment while acknowledging that "[i]f the record before [the court] at trial were the same as that before [the court] on this motion, judgment would be entered in favor of the [defendant]"); Curto's, Inc. v. Krich-New Jersey, Inc., 193 F. Supp. 235, 238 (D.N.J. 1961) (stating that "[i]t is only where there clearly are no issues in the case that a summary judgment is proper" and that "[e]ven in an instance where the Court may feel it will have to direct a verdict on the issues which have been raised, it should ordinarily hear the evidence, rather than attempt to dispose of the case summarily"); Arkansas v. Central Surety & Ins. Corp., 102 F. Supp. 444, 447 (W.D. Ark. 1952) (stressing that "only in a rare case can it be determined by affidavit that the evidence available will be such as to entitle the movant, if the case were tried on its merits to a jury, to a directed verdict because there has been no opportunity to cross-examine the witnesses"). Return to text.

[67] Ross v. Communications Satellite Corp., 759 F.2d 355 (4th Cir. 1985). Return to text.

[68] Id. at 364 (quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.), cert. denied, 342 U.S. 887 (1951)). Return to text.

[69] Id. Return to text.

[70] See, e.g., Farrell v. Hollingsworth, 43 F.R.D. 362, 365 (D.S.C. 1968). Return to text.

[71] 278 F.2d 492 (5th Cir. 1960). Return to text.

[72] Id. at 496. Return to text.

[73] Id. at 497. Return to text.

[74] Id. at 496 (citation omitted). Return to text.

[75] 280 F.2d 523 (5th Cir. 1960). Return to text.

[76] Id. at 529. Return to text.

[77] Id. Return to text.

[78] Id.; accord Sheets v. Burman, 322 F.2d 277, 281 (5th Cir. 1963); Stanley v. Guy Scroggins Constr. Co., 297 F.2d 374, 378 (5th Cir. 1961). Return to text.

[79] 317 F.2d 56 (5th Cir. 1963). Return to text.

[80] Id. at 58. Return to text.

[81] Id. Return to text.

[82] Id. (quoting JAMES WM. MOORE, 6 MOORE'S FEDERAL PRACTICE ¶ 56.02(10), at 56-46 (2d ed. 1995)). Return to text.

[83] Id. Return to text.

[84] 446 F.2d 1057 (5th Cir. 1971). Return to text.

[85] Id. at 1060. Return to text.

[86] Id. at 1061 n.1. Return to text.

[87] Pruet Prod. Co. v. Ayles, 784 F.2d 1275, 1278 (5th Cir. 1986). Return to text.

[88] Id. Return to text.

[89] Id. Return to text.

[90] See Armco Steel Corp. v. Realty Inv. Co., 273 F.2d 483, 484-85 (8th Cir. 1960). Return to text.

[91] Id. (citations omitted). Return to text.

[92] 761 F.2d 812 (1st Cir. 1985), cert. denied, 474 U.S. 1100 (1986). Return to text.

[93] Id. at 827. Return to text.

[94] Id. (citation omitted). Return to text.

[95] In addition to the above cases, see, e.g., Catts Co. v. Gulf Ins. Co., 723 F.2d 1494, 1502 (10th Cir. 1983); Sandoval v. United States Smelting, Refining & Mining Co., 544 F.2d 463, 464-65 (10th Cir. 1976). Return to text.

[96] 477 U.S. 242 (1986). Return to text.

[97] Id. at 250. Return to text.

[98] Id. at 251-52. Return to text.

[99] Id. at 252. Return to text.

[100] See Issacharoff & Loewenstein, supra note 1, at 85 (noting that Anderson "recast summary judgment into the mold of a motion for a directed verdict"). This point is also underscored by the 1991 amendments to Rule 50(a), which articulated the standard for granting judgment as a matter of law. The Advisory Committee Notes state that "[b]ecause [the articulated] standard is also used as a reference point for entry of summary judgment under 56(a), it serves to link the two related provisions." FED. R. CIV. P. 50 advisory committee notes. Return to text.

[101] See Anderson, 477 U.S. at 252-55. Return to text.

[102] Id. at 257. Return to text.

[103] Id. The assumption that the plaintiff has had a full opportunity to develop her case through discovery is an important qualifier. Under Rule 56(f), a court is authorized to "order a continuance" to permit additional discovery "[s]hould it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." FED. R. CIV. P. 56(f). Obviously, summary judgment should not be granted when the plaintiff can plausibly assert that additional, material proof could be developed through further discovery. On the other hand, the availability of discovery rights, as a prerequisite to granting summary judgment, is a double-edged sword. The fact that the plaintiff has had a full opportunity to develop the facts supporting her case weakens the complaint that the granting of summary judgment has unfairly deprived her of the ability to prove her case. Return to text.

[104] Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Return to text.

[105] See supra notes 42-55 and accompanying text. Return to text.

[106] See supra notes 43-51 and accompanying text. Return to text.

[107] Issacharoff & Loewenstein, supra note 1, at 87. Return to text.

[108] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Return to text.

[109] See 9 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2527, at 285 (1995) (noting that "it is well settled that no weight is to be given to testimony that is opposed to the laws of nature or undisputed physical facts"). Return to text.

[110] 475 U.S. 574 (1986), cert. denied, 481 U.S. 1020 (1987). Return to text.

[111] 481 U.S. at 1020. Return to text.

[112] 475 U.S. at 594 n.19. Return to text.

[113] McGinley, supra note 6, at 227; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 600 (1986) (White, J., dissenting) (majority opinion suggesting that trial judge "should go beyond the traditional summary judgment inquiry and decide for himself whether the weight of the evidence favors the plaintiff"). Return to text.

[114] See Eastman Kodak Co. v. Image Technical Servs., 504 U.S. 451, 468 (1992) (stating that Matsushita demands "that the nonmoving party's inferences be reasonable in order to reach the jury"). Return to text.

[115] See Issacharoff & Loewenstein, supra note 1, at 73. Return to text.

[116] Schwarzer et al., supra note 15, at 450. Return to text.

[117] See McGinley, supra note 6, at 228 n.111 (arguing on the basis of a statistical sample of cases that the granting of summary judgment has substantially increased under the trilogy); Issacharoff & Loewenstein, supra note 1, at 92 (concluding on the basis of a statistical sample of cases that "the unmistakable message to the bar is that district courts are highly receptive to summary judgment motions and, indeed, that such motions are being freely granted"). Return to text.

[118] 29 U.S.C. § 621 (1988). Return to text.

[119] See id. § 631(a). Return to text.

[120] See Lorillard v. Pons, 434 U.S. 575, 585 (1978). Return to text.

[121] McGinley, supra note 6, at 228 n.111. The author notes that "[b]etween January and June 1992, the courts of appeals reviewed 53 ADEA and Title VII cases in which the lower courts had granted summary judgment." Id. By contrast, "[b]efore the trilogy, from January to June 1983, the courts of appeals reviewed only two ADEA and two Title VII cases on appeal from grants of summary judgment for the defendant." Id. There also is evidence of a pronounced increase in the use of the summary judgment procedure in other areas of federal law. See Issacharoff & Loewenstein, supra note 1, at 92 (citing to statistics that evidence a substantial increase in the use of the summary judgment procedure). Return to text.

[122] McGinley, supra note 6, at 228 n.111. Return to text.

[123] Id. at 229 (citations omitted). Return to text.

[124] See, e.g., Walker v. Nationsbank of Florida N.A., 53 F.3d 1548 (11th Cir. 1995); Hayman v. National Academy of Sciences, 23 F.3d 535 (D.C. Cir. 1994); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261 (5th Cir. 1994); Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950 (5th Cir. 1993); Atkin v. Lincoln Property Co., 991 F.2d 268 (5th Cir. 1993); Perfetti v. First Nat'l Bank, 950 F.2d 449 (7th Cir. 1991), cert. denied, 505 U.S. 1205 (1992); Billet v. Cigna Corp., 940 F.2d 812 (3d Cir. 1991); Danielson v. City of Lorain, 938 F.2d 681 (6th Cir. 1991); Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216 (7th Cir. 1991); Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 856 F. Supp. 1561 (S.D. Fla. 1994); Binder v. Long Island Lighting Co., 847 F. Supp. 1007 (E.D.N.Y. 1994), rev'd in part, 57 F.3d 193 (2d Cir. 1995); Futrell v. J.I. Case, 838 F. Supp. 401 (E.D. Wis. 1993), rev'd, 38 F.3d 342 (7th Cir. 1994); see Cavaliere, supra note 16, at 144 (stating that "affirmances of summary judgment and directed verdicts in ADEA cases have been found in virtually all of the circuits"); Note, The Age Discrimination in Employment Act of 1967 and Trial by Jury: Proposals for Change, 73 VA. L. REV. 601, 615 (1987) (urging that courts "have too frequently set aside verdicts that juries have returned for ADEA plaintiffs"). Return to text.

[125] See, e.g., Walker, 53 F.3d at 1552; Perfetti, 950 F.2d at 450; Isenbergh, 856 F. Supp. at 1564; Binder, 847 F. Supp. at 737 (on remand from reversal of summary judgment, 933 F.2d 187 (2d Cir. 1991)); Futrell, 838 F. Supp. at 401 (discussed infra notes 126-33 and accompanying text). Return to text.

[126] 838 F. Supp. 401 (E.D. Wis. 1993), rev'd, 38 F.3d 342 (7th Cir. 1994). As indicated, the district court's decision in Futrell was reversed by the Seventh Circuit. The court of appeal ruled that the plaintiff had presented sufficient evidence to sustain the jury's verdict in his favor. 38 F.3d at 346-47. The court did not address the issue of whether the district court's grant of judgment as a matter of law, on grounds of evidentiary insufficiency, was inconsistent with the court's previous denial of the defendant's motion for summary judgment made on the same grounds. Return to text.

[127] See Decision and Order, Case No. 88-C-1028, at 15 (E.D. Wis. Apr. 8, 1992). Return to text.

[128] Id. Return to text.

[129] 38 F.3d 342, 344 (7th Cir. 1994). Return to text.

[130] Id. Return to text.

[131] Id. Return to text.

[132] See Futrell, 838 F. Supp. at 401. Return to text.

[133] Id. at 410. Return to text.

[134] The fact that courts have not modified their approach to Rule 50 practice also is evidenced by decisions outside the context of the ADEA. Rule 50 judgments on evidentiary grounds continue to be a commonplace feature of federal practice. See, e.g., Clark v. Brien, 59 F.3d 1082, 1086-89 (10th Cir. 1995); Favorito v. Pannell, 27 F.3d 716, 719-22 (1st Cir. 1994); Bankers Trust Co. v. Lee Keeling & Assocs., Inc., 20 F.3d 1092, 1099-1101 (10th Cir. 1994); Peus v. Allstate Ins. Co., 15 F.3d 506, 513-19 (5th Cir.), cert. denied, 115 U.S. 573 (1994); Jordan-Milton Mach. v. F/V Teresa Marie, II, 978 F.2d 32, 34-36 (1st Cir. 1992); Garrett v. Barnes, 961 F.2d 629, 631-35 (7th Cir. 1992); PPM Am., Inc. v. Marriott Corp., 875 F. Supp. 289, 293-304 (D. Md. 1995); Jones v. Lederle Lab., 785 F. Supp. 1123, 1125-27 (E.D.N.Y. 1992), aff'd, 982 F.2d 63 (2d Cir. 1992). Return to text.

[135] See infra notes 136-54 and accompanying text. Return to text.

[136] 984 F.2d 541 (1st Cir. 1993). Return to text.

[137] Id. at 545. Return to text.

[138] Id. Return to text.

[139] Id. (citing Voutour v. Vitale, 761 F.2d 812, 822-23 (1st Cir. 1985), cert. denied, 474 U.S. 1100 (1986)). Return to text.

[140] Id. Return to text.

[141] 851 F.2d 1503 (5th Cir. 1988). Return to text.

[142] Id. at 1508. Return to text.

[143] Id. (citing Pruet Prod. Co. v. Ayles, 784 F.2d 1275 (5th Cir. 1986)). Return to text.

[144] Id. Return to text.

[145] Id.; see also Newharbor Partners, Inc. v. F.D. Rich Co., 961 F.2d 294, 297 (1st Cir. 1992) (stressing that "[t]here is nothing unorthodox . . . about denying a motion for summary judgment because of a doubt whether triable facts existed and later granting a directed verdict after the critical facts had been developed, even if both motions were made on the same grounds"); Jones v. Lederle Lab., 785 F. Supp. 1123, 1125 (E.D.N.Y.) ("Denial of a motion for summary judgment does not prevent a court from granting a subsequent Rule 50 motion by the same party with respect to the same claim."), aff'd, 982 F.2d 63 (2d Cir. 1992). Return to text.

[146] This seemed to be the principal focus of the court in Bienkowski, which emphasized the ways in which the "jury" or the "fact finder" could reject the theories suggested by the plaintiff's evidence. 851 F.2d at 1508. A denial of summary judgment does not entitle the plaintiff to a favorable reception by the jury. The fact, however, that a plaintiff's case may not withstand the rigors of the adversarial system—when the case is tested in open court—does not speak to the court's role in ruling on a Rule 50 motion. Return to text.

[147] See supra notes 108-09 and accompanying text. Return to text.

[148] One can conceive of circumstances in which a plaintiff's case would become so unraveled at trial that a judge could grant relief as a matter of law. However, this should be the exception, not the rule. See infra notes 163-65 and accompanying text (discussing circumstances under which courts could properly grant a Rule 50 motion after having denied summary judgment). Return to text.

[149] See supra notes 96-114 and accompanying text. Return to text.

[150] See supra notes 136-40 and accompanying text. Return to text.

[151] See supra notes 101-07 and accompanying text. Return to text.

[152] See supra notes 110-14 and accompanying text. Return to text.

[153] See supra note 107 and accompanying text. Return to text.

[154] Supra notes 110-14 and accompanying text. Return to text.

[155] See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Return to text.

[156] See, e.g., Thorpe v. Mutual of Omaha Ins. Co., 984 F.2d 541, 545 (1st Cir. 1993). Return to text.

[157] Abbadessa v. Moore Business Forms, Inc., 987 F.2d 18, 22 (1st Cir. 1993). Return to text.

[158] Gertz v. Robert Welch, Inc., 680 F.2d 527, 532 (7th Cir. 1982), cert. denied, 459 U.S. 1226 (1983). Return to text.

[159] Id. Return to text.

[160] 18 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4478, at 788 (1995); for an example of how courts have applied the law of the case doctrine, see infra notes 177-83 and accompanying text (applying doctrine to successive motions for summary judgment). Return to text.

[161] See, e.g., Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988); Cohen v. Bucci, 905 F.2d 1111, 1112 (7th Cir. 1990); Cardwell v. Kurtz, 765 F.2d 776, 778 (9th Cir. 1985); 1B JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE ¶ 0.404 (4.-1), at II-12-13 (2d ed. 1995). Return to text.

[162] See, e.g., Virgin Atl. Airways v. National Mediation Bd., 956 F.2d 1245, 1254-55 (2d Cir. 1992), cert. denied, 506 U.S. 820 (1992); Wzorek v. City of Chicago, 906 F.2d 1180, 1185 (7th Cir. 1990); United States v. City of Chicago, 853 F.2d 572, 576-77 (7th Cir. 1988). Return to text.

[163] See, e.g., Messinger v. Anderson, 225 U.S. 436, 444 (1912). Return to text.

[164] White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967); accord United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862 (1991); Vucinich v. Paine, Webber, Jackson & Curtis, Inc., 803 F.2d 454, 459 (9th Cir. 1986); In re Korean Air Lines Disaster of Sept. 1, 1983, 798 F. Supp. 755, 759 (E.D.N.Y. 1992); Pincus v. Pabst Brewing Co., 752 F. Supp. 871, 873 (E.D. Wis. 1990). Return to text.

[165] 1B MOORE, supra note 161, ¶ 0.404(1), at II-9 ("The doctrine of the law of the case is, then, a heavy deterrent to vacillation on arguable issues, but not designed to prevent the correction of plain error or injustice."). Return to text.

[166] 18 WRIGHT ET AL., supra note 160, § 4478, at 799-800. Return to text.

[167] FED. R. CIV. P. 50 advisory committee notes, 1991 Amendment. It is also of note that Rule 16(e) substantially limits the authority of courts to modify orders made after a final pretrial conference. FED. R. CIV. P. 16(e) (stating that such orders "shall be modified only to prevent manifest injustice"). Applying the law of the case doctrine to issues of evidentiary sufficiency previously litigated at the summary judgment stage is consistent with the case management policies reflected in Rule 16(e). Return to text.

[168] E.g., FED. R. CIV. P. 54(b). Return to text.

[169] 18 WRIGHT ET AL., supra note 160, § 4478, at 800 n.33. Return to text.

[170] See e.g., Gates v. Shell Offshore, Inc., 881 F.2d 215, 216-17 (5th Cir. 1989), cert. denied, 494 U.S. 1017 (1990); Fadhl v. City & County of San Francisco, 804 F.2d 1097, 1099 (9th Cir. 1986); Otten v. Stonewall Ins. Co., 538 F.2d 210, 212-13 (8th Cir. 1976); Lincoln Nat'l Life Ins. Co. v. Roosth, 306 F.2d 110, 112-15 (5th Cir. 1962), cert. denied, 372 U.S. 912 (1963). Return to text.

[171] 18 WRIGHT ET AL., supra note 160, § 4478, at 799-800. Return to text.

[172] 803 F.2d 454 (9th Cir. 1986). Return to text.

[173] Id. at 458-60. Return to text.

[174] Id. at 459. Return to text.

[175] Id. Return to text.

[176] Id. Return to text.

[177] See supra note 158 and accompanying text. Return to text.

[178] See e.g., Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 251 (D.C. Cir. 1987); Shearer v. Homestake Mining Co., 727 F.2d 707, 709 (8th Cir. 1984); United States v. Horton, 622 F.2d 144, 148 (5th Cir. 1980); Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1121 (10th Cir.), cert. denied, 444 U.S. 856 (1979); Kirby v. P.R. Mallory & Co., 489 F.2d 904, 913 (7th Cir. 1973), cert. denied, 417 U.S. 911 (1974); see also Abbadessa v. Moore Business Forms, Inc., 987 F.2d 18, 22 (1st Cir. 1993) (observing that law of the case doctrine did not bar court from entertaining a second motion for summary judgment where the issue raised in the second motion had not been decided by the district court); Cale v. Johnson, 861 F.2d 943, 948 (6th Cir. 1988) (stating that court could reconsider previous denial of summary judgment where required by the "demands of justice"). Return to text.

[179] See e.g., Wright v. Cayan, 817 F.2d 999, 1002 n.3 (2d Cir.) (reconsidering denial of summary judgment offends "general practice of refusing to reopen what has been decided"), cert. denied, 484 U.S. 853 (1987); Allstate Fin. Corp. v. Zimmerman, 296 F.2d 797, 799 (5th Cir. 1961) (expressing general disapproval of "piecemeal consideration of successive motions for summary judgment, since defendants might well normally be held to the requirement that they present their strongest case for summary judgment when the matter is first raised") (cited in Fernandez v. Bankers Nat. Life Ins. Co., 906 F.2d 559, 569 (11th Cir. 1990)). Return to text.

[180] Kirby, 489 F.2d at 913; see also Abbadessa, 987 F.2d at 22 (suggesting that the law of the case doctrine would apply to the subsequent motion "except in unusual circumstances"); Federal Ins. Co. v. Scarsella Bros., 931 F.2d 599, 601-02 n.4 (9th Cir. 1991) (suggesting that there are circumstances where a district court "establish[es] law of the case when it denies a summary judgment motion"); Marvin v. King, 734 F. Supp. 346, 351 (S.D. Ind. 1990) (stating that a court should not "set aside the law of the case lightly" by reconsidering a previous denial of summary judgment). Return to text.

[181] See e.g., Cardwell v. Kurtz, 765 F.2d 776, 778 (9th Cir. 1985); Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665-66 (E.D. Cal. 1986), rev'd in part, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988); Erie Conduit Corp. v. Metropolitan Asphalt Paving Ass'n, 560 F. Supp. 305, 307-08 (E.D.N.Y. 1983). Return to text.

[182] See, e.g., Dictograph Prod. Co. v. Sonotone Corp., 230 F.2d 131, 135 (2d Cir.), cert. dismissed, 352 U.S. 883 (1956). Return to text.

[183] See, e.g., Corporacion De Mercadeo Agricola v. Mellon Bank Int'l, 608 F.2d 43, 48 (2d Cir. 1979). Return to text.

[184] 18 WRIGHT ET AL., supra note 160, § 4478, at 791. Return to text.

[185] Id. Return to text.

[186] Id. Return to text.

[187] See, e.g., Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 184-85 (5th Cir. 1990), cert. denied, 114 S. Ct. 171 (1993) (suggesting that courts should be free to reconsider a denial of summary judgment at the preliminary stages of the case). Return to text.

[188] This is particularly true given the extent to which summary judgment has emerged as a major gatekeeping device in federal litigation. See infra notes 190-92 and accompanying text (discussing policy arguments in favor of treating a previous denial of summary judgment as law of the case). Return to text.

[189] See supra notes 134-45. Return to text.

[190] See supra notes 5-12 and accompanying text. Return to text.

[191] The argument in this section of the Article tracks, in some respects, the "Economic Analysis of Summary Judgment" in Issacharoff & Loewenstein, supra note 1, at 94-118. Return to text.

[192] See supra notes 13-16 and accompanying text. Return to text.

[193] See Thomas J. Piskorski, The Growing Judicial Acceptance of Summary Judgment in Age Discrimination Cases, 18 EMPLOYEE REL. L.J. 245, 254 (1992) ("In today's litigation climate, . . . [defendants] must view every case as one in which a motion for summary judgment will be filed and from day one begin developing a record that maximizes the chance of success of such a motion."). Return to text.

[194] See McGinley, supra note 6, at 228-29. Return to text.

[195] This point may appear to be inconsistent with the assertion above that courts should look skeptically upon sufficiency challenges raised for the first time at the Rule 50 stage. However, that point was made in the context of current conditions concerning the use of the summary judgment procedure. My strong preference is for approaches which would reduce the use of summary judgment. Return to text.

[196] This is evident from the cases, cited above (supra notes 56-69 and accompanying text), in which courts willingly passed on the issue of evidentiary sufficiency at the summary judgment stage precisely because the issue could be taken up anew at the Rule 50 stage. Return to text.