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Thursday, December 03, 2009

Pleading and judicial-legislative conversations

A major criticism of Iqbal/Twombly (can we just start treating them as one case?) is that the Supreme Court functionally amended the pleading standard by judicial decision rather than through the required process of the Rules Enabling Act, with its greater opportunity for study, information-gathering, and deliberation. The Court had twice expressly, emphatically, and unanimously rejected arguments from litigants that it should raise the pleading burden in civil rights cases, the Court insisting that any such change must come through the rulemaking process it subsequently ignored. Which is why the about-face surprised so many people. An irony of Iqbal/Twombly is that the decisions actually short-circuited an embryonic study and reconsideration by the Rules Committee of notice pleading and whether it no longer was workable in modern federal litigation (especially in cases involving government officials and large businesses, where discovery costs may be high and burdensome). The Committee abandoned that effort in favor of watching how the new case-imposed standard plays out.

That adds a new gloss to the various efforts in Congress to overturn Iqbal/Twombly via statute, perhaps recognizing that the Court is not likely to sign off on an REA-based change. Proposals have ranged from reinstating Conley v. Gibson by name to an explicit rejection of any power to dismiss based on a judicial determination that facts or claims are not plausible to legislative reinstatement of Conley's "no set of facts" language to something akin to "damn it, we meant short, plain statement." The Senate Judiciary Committee yesterday held a hearing, titled Has the Supreme Court Limited Americans' Access to Courts? to address the matter.

One of the witnesses was Steve Burbank (Penn) who proposed a new statute. His version provides that motions to dismiss, motions to strike, and motions for judgment on the pleadings "shall be in accordance with interpretations of the Federal Rules of Civil Procedure by the Supreme Court of the United States, and by lower courts in decisions consistent with such interpretations, that existed on May 20, 2007" [the day before Twombly was decided and also my 39th birthday]. Burbank explained the proposal as an attempt to return pleading to the status quo ex ante--before the Court gummed up the works with (what he regards as) an inappropriate judicial amendment to the rules--to then provide the time (approximately three years) for appropriate study by Committee, Congress, or both as to the appropriate federal pleading standard. That pleading regime--whatever it ultimately may look like and even if it ends up looking like Iqbal/Twombly (although I doubt it would)--then would be enacted through the appropriate prospective rulemaking/lawmaking process. But first that process could do what it does better than courts acting in common law style: Gather and study information to make a reasoned policy choice about legal standards, without the shadow of a judicially created new rule with which lower courts must tangle.

It is an interesting approach because it is as neutral a proposal as we are likely to see in the debate over Iqbal/Twombly. By reinstating the old regime (as opposed to reinstating Conley by name), it implicitly recognizes that a pure Conley and "appears beyond doubt" were not the real standard on the ground, even if pleading was not a significant hurdle. More importantly, one can believe that the pleading standard ought to be ratcheted up and still support Burbank's proposal that any pleading rule be as thought-out and empirically supported as possible and that it be established through regular rulemaking channels. And that until the rulemaking process plays itself out, the judicial status quo should remain.

Posted by Howard Wasserman on December 3, 2009 at 08:01 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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Howard, I think what constitutes a "neutral" approach is almost certainly in the eye of the beholder. Prior to Twombly, the governing precedent was Conley. Even if its "no set of facts" language was not really followed on-the-ground, all of those decisions were not "consistent" with it. So the statute seems to restore Conley with the same effect as if it specified Conley by name. And, of course, proposing "Lets restore Conley and come back in three years with possible changes that Congress may or may not enact" is not a very tempting proposal. It changes the very heavy burden of shifting the status quo from Conley-supporters to Twombly-supporters.

Of course, one can always support the argument for more study. But we can make that study with Twombly governing in the interim as much as with Conley governing in the interim.

Finally, enacting a new statute in the interim pending a study undermines pretty much all the supposed benefits of overruling Twombly in the first place. As I understand it, the primary arguments against Twombly are two: (1) the Court is out of line and should be punished; and (2) the new standard mucks up the status quo and creates uncertainty. By a supposedly "neutral" compromise, I take it that you are trying to disavow the punishment rationale. By enacting a statute which will raise its own set of interpretative issues--what exactly was "consistent" with Conley, including whether Twombly meets that test--you are also mucking up the status quo and creating uncertainty.

Posted by: TJ | Dec 3, 2009 9:22:56 AM

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