Legal Commentary

The Law Of Unintended Consequences

By Big Tent Democrat

Let's assume for the moment that there is in fact, nothing malign about the suspicious circumstances by which the Congress passed the Interstate Recognition of Notarizations Act. The effects of the legislation would be, in my view, to further erode the due process afforded homeowners in foreclosure proceedings. The use of the ambiguous term "recognize" could, and in my opinion, will, be used to further deprive homeowners of due process - perhaps leading to the blanket acceptance of notarized documents without the opportunity to rebut or impeach them. Let me give you an example of unintended consequences. In Bell Atlantic v. Twombly (PDF), which heightened pleading requirements in the antitrust context, writing for the Court, Justice Souter stated:

In reaching this conclusion, we do not apply any “heightened” pleading standard, nor do we seek to broaden the scope of Federal Rule of Civil Procedure 9, which can only be accomplished 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)). On certain subjects understood to raise a high risk of abusive litigation, a plaintiff must state factual allegations with greater particularity than Rule 8 requires. Fed. Rules Civ. Proc. 9(b);(c). Here, our concern is not that the allegations in the complaint were insufficiently particular[ized], ibid.; rather, the complaint warranted dismissal because it failed in toto to render plaintiffs; entitlement to relief plausible.

(Emphasis supplied.) Now here is Justice Souter in dissent in Ashcroft v Iqbal, which cites Souter's Twombly opinion as the basis of its holding:

Ashcroft and Mueller argue that these allegations fail to satisfy the “plausibility standard” of Twombly. They contend that Iqbal’s claims are implausible because such high-ranking officials “tend not to be personally involved in the specific actions of lower-level officers down the bureaucratic chain of command.” Brief for Petitioners 28. But this response bespeaks a fundamental misunderstanding of the enquiry that Twombly demands. Twombly does not require a court at the motion-to-dismiss stage to consider whether the factual allegations are probably true. We made it clear, on the contrary, that a court must take the allegations as true, no matter how skeptical the court may be. See Twombly, 550 U. S., at 555 (a court must proceed “on the assumption that all the allegations in the complaint are true (even if doubtful in fact)”); id., at 556 (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable”); see also Neitzke v. Williams, 490 U. S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance … dismissals based on a judge’s disbelief of a complaint’s factual allegations”). The sole exception to this rule lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel. That is not what we have here.

Under Twombly, the relevant question is whether, assuming the factual allegations are true, the plaintiff has stated a ground for relief that is plausible. That is, in Twombly’s words, a plaintiff must “allege facts” that, taken as true, are “suggestive of illegal conduct.” 550U. S., at 564, n. 8.

Justice Souter was the author of the Twombly opinion, but his view of what his words meant were rejected by the Court. Souter learned the Law of Unintended Consequences and that The Road To Hell Is Paved By Good Intentions.

President Obama must veto this bill.

FULL DISCOSURE: This legislation affects cases I am involved in. Speaking for me only

Full post as published by TalkLeft on October 07, 2010 (boomark / email).