Wednesday, July 29, 2009

An Alternative to Senator Specter's Notice Pleading Bill

In my latest FindLaw column, I examine Senator Specter's proposal to restore notice pleading in the federal courts. I describe the pros and cons of the proposal in general, and then point to a few drafting flaws. Here I'll put my money where my mouth is. With thanks to my fellow proceduralists in the legal academy and on the civil procedure listserve, and a special nod to Kevin Clermont (my colleague) and David Shapiro (who taught me civil procedure when I was a law student 22 years ago), below is my proposal:

A BILL

To restore notice pleading in the federal courts.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Notice Pleading Restoration Act of 2009’’.

SECTION 2. SUFFICIENCY OF PLEADINGS IN FEDERAL COURTS.
Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not deem a pleading inadequate under rule 8(a)(2) or rule 8(b)(1)(A) of the Federal Rules of Civil Procedure, on the ground that such pleading is conclusory or implausible, except that a court may take judicial notice of the implausibility of a factual allegation. So long as the pleaded claim or defense provides fair notice of the nature of the claim or defense, and the allegations, if taken to be true, would support a legally sufficient claim or defense, a pleading satisfies the requirements of rule 8.

Posted by Mike Dorf

12 comments:

Joe said...
This comment has been removed by the author.
Michael C. Dorf said...

In an earlier version of this post, I noted the incorrect link. In any event, it is now fixed.

AF said...

Would this statute preclude the following reasoning:

The complaint alleges X, which is not a valid claim under the applicable legal standard. While there may be a set of facts Y consistent with the complaint that would constitute a valid claim, that is not the most natural reading of the complaint. Hence the complaint is dismissed.

That strikes me as the basic reasoning of Twombly, though instead "not the most natural reading of the complaint" the Court said that the set of facts Y were "implausible."

Dan ad nauseam said...

I assume the "implausibility" clause is intended to preserve the rule in Tyler v. Carter. I'm a bit concerned that as drafted, this language may be prone to abuse, but I can't think of anything that could substitute by "frivolity."

狗熊克星 said...

工作忙碌的現代人失眠是大家共同的通病,為什麼會有這樣的問題呢,可能是體內的酵素流失太多,這時候要補充才能夠使我們精神較佳改善睡不著的問網路新聞:隨著全球之後投資人更願意承擔風的比例大大提升黃金回收近來深受資金流出的衝,受到珠寶和工業需求減少影響酵素占資產配置一成左右即可,不宜過高,以防止被套牢造成損失。

投資黃金的熱潮又來了嗎?國際金價本週連漲4天黃金回收業者朱先生表示本週的顯示金價出現百年來難得一見的高價,此時進場正是時候他把黃金拿出來變賣,順便去買一些失眠藥來吃解決他多年來睡不好的老問題。

愛美女性有福了最新水刀抽脂能快速滿足追求完美體態若您想要瘦小腿小腿神經阻斷術可幫您達成美腿的功效你常拉肚子嗎那是因為脹子中的酵素分泌過少的原故可以多吃木瓜有助於消化吸終身醫療即將全面停賣了還想要買的朋友動作要快

gaohui said...

If you're a plus size woman you've probably Moncler noticed that the majority of coats in stores today are moncler veste designed with women that are supposed to be moncler doudoune shaped like a toothpick. It can be difficult to moncler hommes find a coat that not only looks good but also doesn't break the moncler femmes bank. Coats typically cost a lot of money so it's in your doudoune moncler femmes best interest to shop wisely.A lot of women doudoun moncler hommes make the mistake of only thinking about their dress doudoune moncler femmes or skirt when putting together an doudoune moncler hommes outfit. However, it's important to keep in mind that the majoriy of moncler-gilet people are going to see you with a coat on.

برامج said...

thanks for the link sir good work
أيفون

jet said...

The issue claims X, which is not a real declare under the appropriate lawful conventional. While there may be a set of http://www.mmomesos.com/ information Y constant with the issue that would represent a real declare, that is not the most organic studying of the issue. Hence the issue is ignored.

喜洋洋 said...

高雄縣徵信商業同業公會
南部徵信聯盟
外遇觀測站
大愛離婚諮詢網
離婚大剖析
大愛徵信有限公司
尋人專家徵信服務網
女人徵信公司
華陀徵信
離婚協助中心
跟蹤蒐證徵信器材網
抓姦觀測
大愛徵信
溫馨徵信
成功徵信社

喜洋洋 said...

高雄縣徵信商業同業公會
南部徵信聯盟
外遇觀測站
大愛離婚諮詢網
離婚大剖析
大愛徵信有限公司
尋人專家徵信服務網
女人徵信公司
華陀徵信
離婚協助中心
跟蹤蒐證徵信器材網
抓姦觀測
大愛徵信
溫馨徵信
成功徵信社

marly aaran said...

I really think that one of the best articles is this one. It has everything. I needed this information to prove wrong my teacher. I knew this was happening. But my teacher did not agree with me. Now, he'll know I was right! Thank you!
family-estate |

loren Jett said...

Wow, this post is pleasant, my younger sister is analyzing these things, so I am going to tell her.
www.vanphongdieutra.com |