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As almost anyone alive during the past decade knows, this is the era of the ‘litigation explosion,’ or there is at least the perception that a litigation explosion exists. Although all agree that the absolute number of lawsuits has increased in virtually every corner of the state and federal court systems, there exists vigorous debate about whether the increase is unusual in relative or historical terms and even more vigorous debate about whether the absolute increase in cases symbolizes the American concern for fairness and justice or represents a surge in frivolous or trivial disputes needlessly clogging the courts. As the debate has proceeded, the perception of a litigation explosion has spurred adoption of alternative dispute resolution methods, tougher pleading standards, sterner and more readily available sanctions for discovery abuse, more comprehensive pretrial management of cases, more prevalent fee shifting or adoption of the English Rule, and generally greater ease of pretrial disposition of cases. In 1986, the effect of this trend upon federal summary judgment practice became apparent.

Historically, the chief devices for disposing of matters without trial have been the demurrer, the rule 12(b)(6) motion to dismiss for failure to state a claim, and the summary judgment motion. With the adoption of the Federal Rules of Civil Procedure in 1938, demurrers were abolished. The liberal pleading standards of rules 8 and 9, as interpreted by leading cases made rule 12(b)(6) dismissals difficult to achieve, at least when courts adhered to the letter and spirit of the Supreme Court's pronouncements in the area. To summary judgment was left the formidable task of making the federal system ‘efficient,’ by eliminating baseless claims before trial, a task many came to view as beyond its capabilities under the controlling precedents. Some argued that language in certain precedents made summary judgment too difficult to obtain, allowing many obviously inadequate claims to proceed to trial and needlessly consuming judicial and litigant resources. Some proposed rewriting rule 56 itself. Others argued that the deficiency could be corrected by a substantially altered application of the rule or by establishing as correct the more stringent approach to summary judgment found in some courts.

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49 Ohio St. L.J. 95 (1988).