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Wednesday, July 22, 2009

Overturning Twombly and Iqbal

Sen. Arlen Specter this week will introduce the Notice Pleading Restoration Act to overturn Twombly and Iqbal and reinstate Conley v. Gibson and "no set of facts" as the controlling federal pleading standard.

This is a welcome move, even if I do not see it going anywhere. It raises a couple of interesting issues of congressional power, which I consider after the jump.

First, it is noteworthy that the proposal does not come through the Rules Enabling Act process. This might reflect a belief that the current Court would not approve of this change to the rules. Or it might reflect a belief, contra the original purpose and expectation of the REA, that the ordinary legislative process is quicker and less politicized than the REA process. In fact, I expect one objection to the bill will be that the matter should be referred to the Court and to the Rules Committee.

Second and relatedly, it is noteworthy that the proposal does not directly amend Rule 8 or Rule 12, but establishes a separate statutory rule that must be read in conjunction with the Rules. I am not sure the rationale for this choice. There are some marginal arguments that the REA is the only way that the FRCP can be enacted or amended and that Congress cannot pass ordinary legislation directly drafting a Rule. But the prevailing (and proper, IMO) view is that the Rules are a product of legislation. The Supreme Court ordinary enacts them because Congress delegated power to do so, but Congress always can take back some of the delegated power and make rules on its own.

Third, this proposal relates to something I argued in my work-in-progress on United States v. Klein. One principle for which Klein stands is that Congress cannot force courts to speak a constitutional untruth--cannot tell the courts to adopt a constitutional legal rule or standard different than what the courts, in their independent judgment, believe should be the legal rule. Larry Sager has argued that, under this principle, the Religious Freedom Restoration Act is unconstitutional; RFRA told the courts to apply strict scrutiny to claims that religious exercise was being substantially burdened and expressed specific disagreement with the Court's decision in Employment Div. v. Smith. The structure of this bill is similar to RFRA: Congress is telling courts to apply the old legal standard (identified by case name) that the Court "retired" in Twombly, rather than the new legal standard from more recent Supreme Court decisions which Congress is, effectively, overruling.

So, could there possibly be a Klein problem here? I would argue no and I am fairly certain that Sager would agree. The Supreme Court decision being overturned here is not a constitutional decision, but a statutory one (albeit indirectly statutory--the Court had interpreted a rule that it enacted pursuant to a congressional delegation). Congress is telling courts what FRCP 8 and 12 mean and the interpretive standard to be used, not what the Constitution means. As I put it, there is no such thing as a "statutory untruth"--the ultimate truth of statutory meaning is whatever Congress says.

Again, I do not see this bill going anywhere quickly. But clearly the wheels are turning.

Posted by Howard Wasserman on July 22, 2009 at 03:39 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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Is anyone keeping track of the Roberts court's record with respect to its statutory interpretation being overturned by Congress? I count three so far (Ledbetter, Allison Engine, and Santos); I suppose, if it goes anywhere, that this could be another one.

Posted by: Garrett Wollman | Jul 23, 2009 2:04:10 PM


It's not the voters. It's the donors. In a Democratic primary, which Specter now faces, having the trial lawyers on board with money and support could make a big difference. If you represent plaintiffs, particularly in complex cases, Iqbal can be game ending, and in a way that in many individual cases will be palpably unjust. There is an important political constituency on this, and one that Specter needs.

Posted by: Ray Campbell | Jul 22, 2009 10:06:43 PM

In response to Ray:

I doubt that we could put anything past Specter in terms of political opportunism, but I do not think that there is a lot of controversy beyond lawyers over Twombly and Iqbal. This does not have the popular salience of something like Kelo for whatever reason. It obviously could be spun as a populist move, but there would seem to be easier or more effective ways to do that.

Posted by: Ben | Jul 22, 2009 9:19:37 PM

If this bill would abrogate FRCP 9(b), what about the PSLRA or any other heightened pleading statutes?

Posted by: Mschonholz | Jul 22, 2009 8:37:06 PM

Iqbal is going to create a colossal mess, but Conley also created a colossal mess. I'm hoping that someone can come up with a better solution than returning to the imperfect regime of Conley. Casting Conley in statutory stone is not, imho, a good thing, and would inhibit rather than facilitate coming up with a system that is fair to both plaintiffs and defendants.

With Specter up for re-election, facing both Democratic primary and general election challengers, does anyone think his introducing this might be more about near term politics than long term jurisprudence?

Posted by: Ray Campbell | Jul 22, 2009 4:55:47 PM

A quick response from a listserv member:

There are unquestionably a lot of gaps. As I understand it, the goal with this bill was simply to start a discussion. Refinements will undoubtedly be in order if the bill has any traction. I suggest, however, that although such matters of detail are important, we should not lose the forest for the trees. The questions of public policy here are enormously important.

Posted by: Howard Wasserman | Jul 22, 2009 4:48:30 PM

Nice catch; this is what arises from a gap between the text and what the drafters had in mind. I actually presented the question to the Civ Pro Prof listserve; see people there have to say. The only way around it I can see is that "Act of Congress" includes all the current FRCP (enacted pursuant to the REA), all of which remain unaffected by the change except for FRCP 8(a), which is the only rule at issue in the 12(b)(6) motion in Conley (and in Twombly and Iqbal). But this seems like a stretch--and clearly creates some unanticipated confusion.

It also illustrates the problems that arise from not more explicitly linking FRCP 8(a) and 12(b)(6)--that the question of whether a pleading fails to state a claim asks whether the pleading satisfies 8(a).

Posted by: Howard Wasserman | Jul 22, 2009 4:47:10 PM

Well, the bill might not be going anywhere soon, but it seems to do a lot more than restore Conley. By my reading of the plain text it also abrogates Rule 9(b) and heightened pleading for fraud cases, since it requires the Conley standard for all cases except as otherwise provided by future amendments to the rules.

Posted by: TJ | Jul 22, 2009 4:10:56 PM

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