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40 Stan. L. Rev. 491 (1987-1988)
Summary Judgment and Circumstantial Evidence

handle is hein.journals/stflr40 and id is 513 raw text is: Summary Judgment and Circumstantial Evidence Daniel P. Collins* Federal Rule of Civil Procedure 56(c) provides that summary judg- ment shall be rendered forthwith if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Defining just what constitutes a genuine issue has proved to be somewhat difficult.' It is generally agreed that the stan- dard mirrors that applied in deciding a motion for a directed verdict, namely whether the evidence presents a sufficient disagreement to re- quire submission to ajury.'2 This, of course, merely restates the ques- tion, but it does so in a way that focuses the inquiry. Essentially, the judge must ask whether a rational jury3 could return a verdict in favor * Third year student, Stanford Law School. I wish to thank Professors Barbara Babcock and Thomas Campbell for their helpful comments on earlier drafts of this note. Any errors are, of course, mine. 1. See Schwarzer, Summay Judgment Under the Federal Rules: Defining Genuine Issues of Mate- ral Fact, 99 F.R.D. 465, 481-89 (1984). Some courts have stated that summary judgment should be denied if there is the slightest doubt as to the facts. See, e.g., United States v. Del Monte de Puerto Rico, Inc., 586 F.2d 870, 872 (Ist Cir. 1978); Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946); Scholtes v. Signal Delivery Serv., Inc., 548 F. Supp. 487, 495 (W.D. Ark. 1982). This view was especially popular in the Second Circuit. See Louis, Federal Summary Judgment Doctnne: A CriticalAnalysis, 83 YALE LJ. 745, 761 & n.71 (1974). However, the slight- est doubt test has been frequently criticized by commentators as rendering summary judg- ment procedures impotent, see, e.g., id. at 760-62; Clark, Special Problems in Drafting and Interpreting Procedural Codes and Rules, 3 VAND. L. REv. 493, 503-04 (1950), and is no longer widely followed, see 10A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE & PROCEDURE § 2727, at 177 (1983). Nonetheless, the test is still usually expressed in relatively strong terms. See, e.g., Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 467 (1962) (summary judgment may be granted only where it is quite clear what the truth is (quoting Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944))); Mandel v. United States, 719 F.2d 963, 965 (8th Cir. 1983) (summary judgment should not be granted unless the moving party has established his right to ajudgment with such clarity as to leave no room for controversy). On the other hand, a mere scintilla would not be enough to defeat the motion. See Marcus v. St. Paul Fire and Marine Ins. Co., 651 F.2d 379, 382 (5th Cir. Unit B July 1981); Ayers v. Pastime Amusement Co., 283 F. Supp. 773, 793 (D.S.C. 1968); Kaye v. Pawnee Constr. Co., 680 F.2d 1360, 1364 (11th Cir. 1982) (directed verdict case). Rather, the non-movant must present at least some evidence to demonstrate that a factual dispute exists. See Lundeen v. Cordner, 354 F.2d 401, 407 (8th Cir. 1966); see also James v. Honaker Drilling, Inc., 254 F.2d 702, 706 (10th Cir. 1958). 2. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2512 (1986); see also Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986); BillJohnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 745 n.lI (1983). 3. Throughout this note, I will ordinarily use the term jury rather than the cumber- some phrase trier of fact. I do not thereby mean to suggest that my analysis would not apply to a case tried to the bench. In such cases, giving too much discretion to a judge decid-

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