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:


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,

This Act may be cited as the ‘‘Notice Pleading Restoration Act of 2009’’.

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


  1. This comment has been removed by the author.

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

  3. 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."

  4. 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."

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