Monday, October 4, 2010
Now in print in the latest issue of the Duke Law Journal is an article by Professor Arthur Miller (NYU) entitled From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1 (2010). Here’s the abstract:
This Article discusses the effects of the recent Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on the model of civil litigation established by the Federal Rules of Civil Procedure in 1938. Those Rules created a procedural system giving a litigant, using plain language and presenting the essential elements of a claim for relief, an opportunity to pursue discovery and have his or her rights adjudicated on the merits. This Article discusses the basic values underlying that system and its importance in promoting broad citizen access to our federal courts and enabling the private enforcement of substantive public policies.
The Article then discusses how Twombly and Iqbal have destabilized both the pleading and the motion-to-dismiss practices as they have been known for over sixty years. The cases are seen as the latest in a sequence of increasingly restrictive changes during the last quarter century. These have created expensive and time-consuming procedural stop signs that produce earlier and earlier termination of cases, thereby increasingly preventing claimants from reaching trial—particularly jury trial. This Article contends that there has been too much attention paid to claims by corporate and other defense interests of expense and possible abuse and too little on citizen access, a level litigation playing field, and the other values of civil litigation. Much fine-grained empirical research is needed to separate fact from fiction.
This Article finds that setting significantly higher and more resource-consumptive procedural barriers for plaintiffs and moving to the ever-earlier disposition of civil suits—now exacerbated by the two Supreme Court decisions—runs contrary to many of the values underlying the Federal Rules. Concluding that the Court’s preoccupation with defense costs is misplaced and its belittlement of case management as a way of cabining those costs is unpersuasive, the Article offers several proposals that the Advisory Committee on Civil Rules (or Congress) might consider to reverse recent developments and ameliorate some of their negative aspects.
Ultimately, the Article asks a basic question: after Twombly and Iqbal, is our American court system still one in which an aggrieved person, however unsophisticated and under-resourced he may be, can secure a meaningful day in court? Finding that the important values of civil litigation are in jeopardy, this Article urges that the egalitarian, democratic ideals espoused by the original Federal Rules not be subordinated to one-dimensional claims of excessive litigation costs and abuse that have not been validated.
PS: Miller writes that his title “seeks to evoke the image of Joe Tinker, Johnny Evers, and Frank Chance, Hall of Fame Chicago Cubs infielders in the early years of the twentieth century, whose remarkable double-play skills were immortalized in a poem by Franklin Pierce Adams in the New York Evening Mail on July 12, 1910.” Particularly timely as we gear up this week for baseball’s post-season (exactly 100 years later).