No. 2] Is Administrative Summary Judgment Unlawful? 281
judgment in all actions.
States would gradually follow this trans-
substantive approach—but the movement was nowhere near com-
plete by the mid-1940s, when Congress was considering and ulti-
mately enacting the APA provision governing summary judgment
. FED. R. CIV. P. 56 advisory committee’s note on rules (1937) (“This rule is appli-
cable to all actions, including those against the United States or an officer or agency
thereof.”); see also MacDonald v. Du Maurier, 144 F.2d 696, 702 (2d Cir. 1944) (Clark, J.,
dissenting) (“[T]he [FRCP], unlike all earlier procedural systems in this country or Eng-
land, make the remedy of summary judgment available for all—not a selected few—civil
actions . . . .”); Arnstein v. Porter, 154 F.2d 464, 479 (2d Cir. 1946) (Clark, J., dissenting),
abrogated by Zhang v. INS, 386 F.3d 66 (2d Cir. 2004) (“The clear-cut provisions of F.R.
56 conspicuously do not contain either a restriction on the kinds of actions to which it
is applicable (unlike most state summary procedures) or any presumption against its
use . . . .”); Charles E. Clark, The Summary Judgment, 36 MINN L. REV. 567, 569 (1952)
(“The striking difference between the federal rule [adopted in 1938] and previous mod-
els is that the procedure is available in any civil action.”); Charles E. Clark, Summary
Judgments: A Proposed Rule of Court, 2 F.R.D. 364, 365 (1941) (“[U]ntil the adoption of the
new federal rules [in 1938], which by Federal Rule 56 swept away all these complicating
restrictions, the general pattern of the reform had been one of stating its application in
only designated, although steadily augmented, types of actions.”); James A. Pike &
John W. Willis, The New Federal Deposition-Discovery Procedure: II, 38 COLUM. L. REV.
1436, 1456 (1938) (“Several features are found in the new [Federal] Rules which have
heretofore not generally appeared in summary judgment statutes. First, there is no lim-
itation as to the type of action in which the remedy is available . . . .”) (footnote omit-
ted); J. Palmer Lockard, Summary Judgment in Pennsylvania: Time for Another Look at Cred-
ibility Issues, 35 DUQ. L. REV. 625, 636 (1997) (“Rule 56 completed summary judgment’s
metamorphosis into a trans-substantive rule . . . . Rule 56, at the time of its adoption
marked a major, if not revolutionary, change in summary process in American law.”)
(footnote omitted); Alexander Holtzoff, Origins and Sources of the Federal Rules of Civil
Procedure, 30 N.Y.U. L. REV. 1057, 1078 (1955) (“For the first time, . . . as far as the author
is aware, summary judgments were made applicable to actions of all kinds without
exception . . . . Theretofore wherever they were permitted the custom had been to limit
them to specific types of actions.”); Chas. S. Coffey, Summary Judgment Procedure for
Tennessee, 16 TENN. L. REV. 393, 396 (1940) (“The widest scope yet given the procedure
in America, and perhaps in any jurisdiction, is found in the new Federal Rules.”); 4 ILL.
PRAC., CIVIL PROCEDURE BEFORE TRIAL § 38:1 (2d ed.) (“Federal Rule 56 was one of the
first provisions that authorized a summary judgment by either party in any civil ac-
tion.”); Johnson, supra note 127, at 202 (quoting Martin Conboy, Depositions, Discovery
and Summary Judgments, 22 A.B.A. J. 881, 884 (1936)) (“The [federal summary judgment]
rules now under consideration are a departure from the existing English and American
rules, inasmuch as there is here no restriction to any class of action, whereas there are
such restrictions in other jurisdictions.”); Brunet et al., supra note 127, at 153 (“Prior to
the 1938 enactment of the Federal Rules, some jurisdictions had allowed summary
judgment only for certain types of claims.”).