Readers of this blog (here and here, for example), and of my FindLaw columns (here, here and here) know that I am a critic of the Supreme Court's rulings in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, which together made it easier for federal district courts to dismiss civil lawsuits. I am hardly alone in my critical position. And now it seems that plaintiff groups (and plaintiffs' lawyers' groups) are gearing up to respond.
As explained in this National Law Journal article by Tony Mauro, the effort to change the law is proceeding on two tracks: (1) A bill in Congress; and (2) The Rules Advisory Committee process. As I noted in one of my columns and an accompanying blog post, the bill proposed by Senator Specter has some technical flaws but these are likely to be corrected in the legislative process. As for the Rules Advisory process, there is the worry that, as U Penn law professor Steve Burbank (quoted in the Mauro article) says: "The process is under the control of the Supreme Court, which is responsible for these atrocities."
That control takes two main forms. First, as Burbank notes, the Chief Justice appoints the members of the Judicial Conference. Second, the Supreme Court itself must approve Rules changes before they become effective (if not vetoed by Congress). True, the Court rarely declines to rubber stamp rules changes approved by the Advisory Committee process, but it can.
All of this leads to an interesting strategic question of timing. The Advisory Committee process is harder for interest groups (such as business groups trying to maintain the status quo and plaintiff groups trying to change the law back to the pre-Twombly/Iqbal regime) to influence than it is for those interest groups to lobby Congress. Suppose one thinks that there are not enough votes to break a Senate filibuster against a revised Specter bill. Going to the Rules Advisory process looks like a decent alternative. But when?
Here's the problem: If you go to Congress first and Congress fails to overrule Twombly and Iqbal, then that failure will surely be invoked in the Rules Advisory process as a reason for no action. The very fact that Congress considered acting, it will be said by those who favor the status quo, shows that the pleading standard has become a political issue that should not be addressed by the technocratic Rules Advisory process. Going to the Rules Advisory Committee first avoids this pitfall but risks squandering precious time. The Mauro article indicates that the Committee is taking a wait-and-see attitude. Thus, it is extremely unlikely to complete its review before the 2010 midterm election, and after that, passage of a notice pleading restoration act in Congress is likely to be even more difficult. So starting on either track carries a substantial risk of undermining the ability to succeed on the other track should the first option fail.
Accordingly, those pro-plaintiff groups seeking to overturn Twombly and Iqbal would be well advised to proceed simultaneously on both tracks. And to do so quickly.
Posted by Mike Dorf