Legal Commentary

Here is the current working version (sponsored by Sen. Whitehouse) of S. 1504, the Notice Pleading Restoration Act of 2010. This bill (modeled on a proposal that Steve Burbank proposed in recent Judiciary Committee testimony) provides that motions to dismiss, strike, or for judgment on the pleadings are governed by the standards applicable on May 20, 2007, the day Twombly was decided. (H/T: Duke's Tom Rowe).

The bill contains a series of legislative findings reflecting a congressional commitment to broad notice pleading as a core underlying purpose and historical expectation of the Federal Rules, particularly in light of the commonly recognized problem of "information assymetry" at the pleading stage. The bill also notes the Court's pre-Twombly insistence that summary judgment, not 12(b)(6) or 12(c), is the proper tool for disposing of unfounded claims.

Finally, on a related note, I wanted to flag Edward Hartnett's forthcoming piece in the Iowa Law Review Bulletin criticizing most of the current proposals to overturn Iqbal/Twombly. Hartnett offers a detailed proposal that would overcome information assymetry by allowing plaintiffs to identify some allegations as "likely to have evidentiary support" after discovery; the court then could either give the allegation a presumption of truth, permit discovery, or deny discovery and convert the motion to one for summary judgment.