Legal Commentary

Sen. Arlen Specter this week will introduce the Notice Pleading Restoration Act to overturn Twombly and Iqbal and reinstate Conley v. Gibson and "no set of facts" as the controlling federal pleading standard.

This is a welcome move, even if I do not see it going anywhere. It raises a couple of interesting issues of congressional power, which I consider after the jump.

First, it is noteworthy that the proposal does not come through the Rules Enabling Act process. This might reflect a belief that the current Court would not approve of this change to the rules. Or it might reflect a belief, contra the original purpose and expectation of the REA, that the ordinary legislative process is quicker and less politicized than the REA process. In fact, I expect one objection to the bill will be that the matter should be referred to the Court and to the Rules Committee.

Second and relatedly, it is noteworthy that the proposal does not directly amend Rule 8 or Rule 12, but establishes a separate statutory rule that must be read in conjunction with the Rules. I am not sure the rationale for this choice. There are some marginal arguments that the REA is the only way that the FRCP can be enacted or amended and that Congress cannot pass ordinary legislation directly drafting a Rule. But the prevailing (and proper, IMO) view is that the Rules are a product of legislation. The Supreme Court ordinary enacts them because Congress delegated power to do so, but Congress always can take back some of the delegated power and make rules on its own.

Third, this proposal relates to something I argued in my work-in-progress on United States v. Klein. One principle for which Klein stands is that Congress cannot force courts to speak a constitutional untruth--cannot tell the courts to adopt a constitutional legal rule or standard different than what the courts, in their independent judgment, believe should be the legal rule. Larry Sager has argued that, under this principle, the Religious Freedom Restoration Act is unconstitutional; RFRA told the courts to apply strict scrutiny to claims that religious exercise was being substantially burdened and expressed specific disagreement with the Court's decision in Employment Div. v. Smith. The structure of this bill is similar to RFRA: Congress is telling courts to apply the old legal standard (identified by case name) that the Court "retired" in Twombly, rather than the new legal standard from more recent Supreme Court decisions which Congress is, effectively, overruling.

So, could there possibly be a Klein problem here? I would argue no and I am fairly certain that Sager would agree. The Supreme Court decision being overturned here is not a constitutional decision, but a statutory one (albeit indirectly statutory--the Court had interpreted a rule that it enacted pursuant to a congressional delegation). Congress is telling courts what FRCP 8 and 12 mean and the interpretive standard to be used, not what the Constitution means. As I put it, there is no such thing as a "statutory untruth"--the ultimate truth of statutory meaning is whatever Congress says.

Again, I do not see this bill going anywhere quickly. But clearly the wheels are turning.