By Mike Dorf
In the waning moments of the recently-concluded lame-duck session of Congress, and in the waning moments of his remarkable Senate career, Senator Arlen Specter introduced a new bill to restore notice pleading in the federal courts. Readers may recall that shortly after the Supreme Court's decision in Ashcroft v. Iqbal, Senator Specter proposed a bill that would have restored the pleading standard of Conley v. Gibson. I was generally supportive of legislatively overruling Iqbal (and Bell Atlantic v. Twombly, known collectively among proceduralistas as "Twiqbal"), but I criticized the original Specter bill because I thought that Conley itself was unclear.
As Senator Specter graciously acknowledged in a statement in the Senate last week, he was persuaded to change his approach by the criticisms and suggestions passed along to him by myself and 13 other lawyers and law professors. I am not confident that the substitute bill is the best approach, but I certainly agree that enacting it would be preferable to the status quo of Twiqbal.
Under the new proposal, the law of pleading would be restored to its pre-Twombly state, with courts further advised not to apply a heightened pleading standard, pending further action by the Rules Advisory Committee. I would have preferred for Congress to specify the pleading standard for the same reason I was concerned with Senator Specter's original proposal--the ambiguities in the pre-Twombly law that permitted lower courts to apply a de facto heightened pleading standard, while purporting to follow existing precedents.
My objection seems moot, however, because the Specter bill has virtually no chance of being enacted by the incoming Congress. The GOP leadership has long favored imposing additional obstacles on lawsuits. For example, incoming House Speaker John Boehner has referred to defensive medicine in response to fear of litigation as "the biggest cost driver" in health care inflation. This is almost certainly false. The best estimate I have seen of the costs associated with the medical liability system puts it at about 2.4% of annual health care costs--not trivial, to be sure, but hardly the biggest cost driver.
The actual numbers don't matter, however, because attitudes towards litigation are so strongly ideological that it is simply inconceivable that the Republican leadership would permit passage of anything resembling the Specter bill. Indeed, it was clearly a low priority even when Democrats were in the majority. Perhaps the cloture/filibuster math in the Senate made the Democratic majority useless on this issue, because even the moderate New England Senate Republicans are anti-plaintiff when it comes to the politics of lawsuits.