Federal Rule of Civil Procedure 1 and Twombly

My FindLaw column today highlights the pending stylistic changes in the Federal Rules of Civil Procedure. For those of you without sufficient motivation to read the column but who nonetheless read my blog entries, here's the executive summary: The new rules are easier to understand than the old ones, which will help novices, but may actually create more problems for experienced lawyers: The new rules are supposed to make only "stylistic" changes, so if there's a question about the meaning of a rule, lawyers will still have to consult the old rules, only now there will be the additional possibility of a conflict between the old and new rules.

I am thus skeptical about the re-styling project. My preference would have been for the new rules to replace the old ones, tout court, although admittedly that would have created more issues under the Supersession Clause of the Rules Enabling Act. (See the column for a further explanation if that sounds like gibberish to you, and if so, you should have paid more attention in your civil procedure class!). Given that the new rules will be a reality, my suggestion in the column is that the Supreme Court should interpret them liberally, in the spirit of Rule 1. Both the old and new version of Rule 1 encourage what might be called purposive, common-sense interpretation, as opposed to rigid formalism. I thus conclude the column by worrying about recent Supreme Court decisions like Bowles v. Russell (the outrageous ruling that a habeas petitioner lost his right to appeal because the district court timing order---with which he COMPLIED---was based on the judge's error that the petitioner could not have reasonably discovered, as I discussed in an earlier column here.)

Oddly, the best hope for a more purposive approach to the Federal Rules may come from another recent decision that the civil proceduristas (myself included) have also been denouncing:
Bell Atlantic v. Twombly. Recall that in that case the Supreme Court appeared to abandon notice pleading for at least one category of antitrust conspiracy claim, in seeming contravention of the fact that Rule 9 sets out a list of the sorts of facts that must be averred specifically, and conspiracy is not on the list. As I noted in this earlier post on the Twombly case, Justice Souter's decision appears to depart from the approach that the Court took to the Rules in two earlier cases that reject a heightened pleading standard on the ground that a heightened pleading standard can only come "by the process of amending the Federal Rules, and not by judicial interpretation.’ ” Swierkiewicz v. Sorema N. A., 534 U. S. 506, 515 (2002) (quoting Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 168 (1993)). Note that in this context, the approach of Swierkiewicz and Leatherman seems unduly formalist: Given that the Supreme Court plays a crucial role in making the Federal Rules, would it really be such a bad thing if the Court also interpreted them loosely? If it turns out that there are sound case management reasons to treat conspiracy allegations differently from other sorts of allegations---at least in complex antitrust cases---why not permit lower courts to impose a heightened pleading requirement?

To be clear, I'm NOT saying that it's actually desirable to have a heightened pleading standard in antitrust cases or qualified immunity cases or any other category of cases not specifically covered by Rule 9. Maybe it is; maybe it isn't. What I am saying is that a Court that thinks that a heightened pleading standard makes sense seems to be fetishizing the Rules by invoking (as the Leatherman Court does) the Latin maxim "expressio unius est exclusio alterius," as though the Rules were the work of God rather than the Court itself, wearing a different hat.

So, if Twombly were departing from the formalist spirit of Swierkiewicz and Leatherman, that might not be a bad thing, and it would be useful for interpreting the new rules. However, the Twombly Court specifically denied that it was even imposing a heightened pleading standard, and since Twombly, the Court has cited Swierkiewicz and Leatherman as the law. Accordingly, Twombly won't provide a basis for escaping the Court's new formalism on procedural matters.