In the last issue of the Report, we mentioned a decision by the U.S. Supreme Court that made a drastic change in the way trial courts in the federal system deal with initial pleadings in civil lawsuits. As a result, Congress has had to wade into the debate over the “pleading standard” for civil lawsuits. Two Supreme Court decisions, including the most recent one, have effectively upended longstanding precedent. Senator Arlen Specter filed legislation last month designed to return the standard to what it had been for years. The most recent case — Ashcroft v. Iqbal decided in the most recent term — has raised the standard that pleaders must meet to avoid having their cases dismissed on a motion to dismiss.
Senator Specter, in discussing his bill, accused the Justices in the majority of the Court of making an end run around precedent. In this regard, he observed:
The effect of the Court’s actions will no doubt be to deny many Plaintiffs with meritorious claims access to the federal courts and, with it, any legal redress for their injuries. I think that is an especially unwelcome development at a time when, with the litigating resources of our executive branch and administrative agencies stretched thin, the enforcement of federal antitrust, consumer protection, civil rights and other laws that benefit the public will fall increasingly to private litigants.
At issue is how specific a pleading must be under the Federal Rules of Civil Procedure. Rule 8 requires that a complaint include “a short and plain statement of the claim showing that the pleader is entitled to relief,” while Rule 12 allows for the dismissal of complaints that are vague or that fail to state a claim. Hopefully the Justices in the majority in Iqbal simply didn’t realize what they were doing or perhaps didn’t realize the significance of their decision. In either event, the Court has created a real mess.
Under Iqbal, a 5-4 decision written by Justice Anthony Kennedy, many courts are now requiring more- pecific facts that, in many cases, aren’t even available until discovery is done. Senator Specter’s bill directs federal courts to interpret the rules as the Supreme Court had done in all earlier decisions. See for example, Conley v. Gibson (1957). The bill was assigned to the Senate Judiciary Committee. It should be passed and signed into law.
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