Rule 8(a) Hates You For Your Freedoms.

So I was reading my WSJ this morning and, in addition to a nice remembrance of DUI attorney Richard Essen, came across this letter from Senator Specter:

William McGurn raises a false alarm that terrorists will flock to sue federal law-enforcement officials if my bill, the Notice Pleading Restoration Act of 2009, were enacted into law ("Terror by Trial Lawyer," Main Street, Dec. 1). Mr. McGurn's argument is so off-base that, during a hearing last Wednesday on the bill before the Senate Judiciary Committee, not a single senator—Republican or Democrat—alluded to, let alone advanced, it.

Under the Congressionally approved Federal Rules of Civil Procedure, adopted in 1938, a complaint need only include a "short and plain statement" showing the plaintiff's entitlement to relief. Two recent decisions of the Supreme Court upset the longstanding interpretations of that rule and, in doing so, bypassed Congress, which by statute must approve any changes to the Federal Rules. Bell Atlantic Corporation v. Twombly, (2007) requires not only that a complaint include specific facts—facts usually in the hands of defendants—but also that it appear "plausible." Ashcroft v. Iqbal, (2009) took Twombly a step further by calling upon judges to indulge their subjective judgment when evaluating a complaint's plausibility. My bill would do no more than restore the pleading standard that prevailed before Twombly and Iqbal.

No one can seriously claim that, before the Supreme Court raised the pleading bar in Twombly and Iqbal, federal litigation threatened national security. For decades government officials have enjoyed various forms of immunity from damages suits. As Justice Stephen Breyer pointed out in his dissent in Iqbal, moreover, the "law . . . provides trial courts . . . with legal weapons" other than heightened pleading requirements, such as tight controls on pre-trial discovery, "designed to prevent unwarranted interference" with government functions when government officials are subject to suit. If the evidence were to show that a small class of suits against government officials might threaten national security, then Congress or the Court could impose a heightened pleading requirement in that small class of cases. No such evidence was provided to the Judiciary Committee at Wednesday's hearing because there is none to provide.

Sen. Arlen Specter (D., Pa.)

Notice pleading a threat to national security?

Seriously, Rule 8(a) represents a threat to our freedoms?

That's a new one.

Perhaps we should indefinitely detain Rule 8(a) without charges and throw it in Gitmo, to be subjected to enhanced interrogation techniques endorsed by 9th Circuit Judge Jay Bybee.

(Boy we got pretty screwed up there for a while.)


  1. DAMN I hate it when they wrap themselves in the flag!!

  2. Seriously, SFL? You understand that once a suit progress beyond a Rule 12 motion it will go on until the discovery "reasonably calculated to lead to the discovery of admissible evidence," ends? Conley needed retirement, regardless of where you stand with regard to Iqbal.

  3. the problem is not with the pleading standard. we should just curtail what discovery you can get. That would be more beneficial than arguing over how something is pled. Specter is right on that point.

  4. Federal practice. blah blah blah. lets amp up procedure over substance. federal practice is for paper pushers. state practice is for real trial lawyers.

  5. 1 pm is right. Too much wiggle room, too much discretion.

  6. Discovery in federal court is not perfect by any means, and definitely can and should be improved.

    However, most good lawyers can parry and narrow discovery by negotiation to the core issues in the case without imposing too great a burden on any party. And federal judges and Magistrate Judges are there when disputes arise or when limitations are necessary.

    If the claim is a complete loser (which is what some argue the benefit of Iqbal really is) then filing an answer and moving for judgment on the pleadings is an approach that is more consistent with the federal rules.

  7. I've run it up the flagpole, and I am saluting.

  8. OK, instead of "you had me at hello" I should say "you had me at the flag lady."

    Specter has been on a lot of crap lists since his little EFCA party-changing move.

  9. Of the terrorists that will flock to sue the Feds; is that all of the 1.27 million on the terrorist watch list? I hear the list is still growing so I understand why the Feds are worried. That could be expensive.

  10. Between Sequoia and Shaman you have some interesting friends SFL.

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