    [Senate Hearing 111-530]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 111-530

           HAS THE SUPREME COURT LIMITED AMERICANS' ACCESS TO COURTS?

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                DECEMBER 2, 2009

                                   __________

                              Serial No. J-111-64

                                   __________

             Printed for the use of the Committee on the Judiciary

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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
    DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
    RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
    CHARLES E. SCHUMER, New York         JON KYL, Arizona
    RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
    BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
    SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
    AMY KLOBUCHAR, Minnesota
    EDWARD E. KAUFMAN, Delaware
    ARLEN SPECTER, Pennsylvania
    AL FRANKEN, Minnesota
                Bruce A. Cohen, Chief Counsel and Staff Director
                      Matt Miner, Republican Chief Counsel

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Cornyn, Hon. John, a U.S. Senator from the State of Texas,
      prepared statement.............................................   136
    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wiscoonsin, prepared statement.................................   172
    Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared
      statement......................................................   221
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
        prepared statement...........................................   223
    Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    14
    Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
      Island, prepared statement.....................................   316

                                   WITNESSES

    Burbank, Stephen B., David Berger Professor for the
      Administration of Justice, University of Pennsylvania Law
      School, Philadelphia, Pennsylvania.............................     7
    Garre, Gregory G., Partner, Latham & Watkins, LLP, Washington,
      D.C., and former Solicitor General of the United States........     6
    Payton, John, President and Director-Counsel, NAACP Legal Defense
      and Educational Fund, Inc., Washington, D.C....................     4

                             QUESTIONS AND ANSWERS

    Responses of Stephen B. Burbank to questions submitted by
      Senators Coburn, Specter.......................................    26
    Responses of Gregory G. Garre to questions submitted by Senators
      Session and Coburn.............................................    50
    Responses of John Payton to questions submitted by Senators
      Franken and Coburn.............................................    69

                           SUBMISSIONS FOR THE RECORD

    AALS, University of Denver, Institute for the Advancement of the
      American Legal System, Denver, Colorado, statement.............    75
    Alliance for Justice; American Antitrust Institute; American
      Association for Justice; American Civil Liberties Union;
      Brennan Center for Justice at NYU School of Law; Center for
      Justice & Democracy; Christian Trial lawyer's Association;
      Committee to Support the Antitrust Laws; Community Catalyst;
      Consumer Federation of America; Consumers Union; Earthjustice;
      Environment America; Essential Information; The Impact Fund; La
      Raza Centro Legal; Lawyers' Committee for Civil Rights Under
      Law; Leadership Conference on Civil Rights; Mexican American
      Legal Defense and Educational Fund; NAACP Legal Defense and
      Educational Fund; National Association of Consumer Advocates;
      National Association of Shareholder and Consumer Attorneys;
      National Consumer Law Center; National Consumers League;
      National Council of La Raza; National Crime Victims Bar
      Association; National Employment Lawyers Association; National
      Senior Citizens Law Center; National Whistleblowers Center;
      National Women's Law Center; Neighborhood Economic Development
      Advocacy Project; Public Citizen; Sierra Club; Southern Poverty
      Law Center; Taxpayers Against Fraud; U.S. Public Interest
      Research Group, October 26, 2009, joint letter.................    78
    Beckerman, John S., Associae Dean, Rutgers University School of
      Law, Camden, New Jersey, statement.............................    81
    Burbank, Stephen B., David Berger Professor for the
      Administration of Justice, University of Pennsylvania Law
      School, Philadelphia, Pennsylvania, statement..................    84
    Carter, Sean P., Cozen O'Connor, a Professional Corporation,
      Philadelphia, Pennsylvania, letter and attachments.............   114
    Croley, Steven P., Professor of Law, University of Michigan Law
      School, Ann Arbor, Michigan, statement.........................   138
    Dorf, Michael C., Professor of Law, Cornell University Law
      School, Ithaca, New York, letter...............................   151
    Eisenberg, Theodore, Henry Allen Mark Professor of Law & Adjunct
      Professor of Statistical Sciences, Cornell University,
      statement......................................................   153
    Garre, Gregory G., Partner, Latham & Watkins, LLP, Washington,
      DC, and former Solicitor General of the United States,
      statement......................................................   174
    Hausfeld, Michael D., Chairman, Hausfeld LLP, Washington, DC,
      statement......................................................   215
    Mexican American Legal Defense and Educational Fund, Claudine
      Karasik, Legislative Staff Attorney, Washington, DC, statement.   225
    Malveaux, Suzette M., Associate Professor of Law, Columbus School
      of Law, Catholic University of America, Washington, DC,
      statement......................................................   227
    Miller, Arthur R., Professor, New York Univerity, School of Law,
      New York, New York, statement..................................   233
    Morrison, Alan B., George Washington University, University Law
      School, Washington, DC, statement..............................   241
    National Senior Citizens Law, Simon Lazarus, Public Policy
      Counsel, Washington, DC, letter................................   249
    Payton, John, President and Director-Counsel, NAACP Legal Defense
      and Educational Fund, Inc., Washington, DC, statements.........   253
    Pollak, Louis H., University of Pennsylvania Law Review,
      Philadelphia, Pennsylvania, statement..........................   270
    Richards, J. Douglas, Cohen Milstein Sellers & Toll PLLC, New
      York, New York, statement......................................   273
    Seiner, Joseph A., Professor, University of South Carolina School
      of Law, Columbia, South Carolina, statement....................   279
    Shapiro, David L., William Nelson Cromwell Professor of Law,
      Emeritus Harvard Law School, Cambridge, Massachusetts, memo....   284
    Spencer, A. Benjamin, Professor, Washington & Lee Univeristy
      School of Law, Lexington, Virginia, letter and attachment......   285
    Subrin, Stephen N., Professor, Northeastern University School of
      Law, Boston, Massachusetts, statement..........................   305
    Thomas, Suja A., Professor, University of Illinois College of
      Law, Champaign, Illinois, statement............................   311
    Wolff, Tobias Barrington, Professor of Law, University of
      Pennsylvania Law School, Philadelphia, PA, statement...........   317

                     ADDITIONAL SUBMISSIONS FOR THE RECORD

    Submissions for the record not printed due to voluminous nature,
      previously printed by an agency of the Federal Government or
      other criteria determind by the Committee, list:
    Kuperman, Andrea, Rules Law Clerk to Judge Lee H. Rosenthal,
      Chair of the Judicial Conference Committee, memorandum

           HAS THE SUPREME COURT LIMITED AMERICANS' ACCESS TO COURTS?

                                  ----------

                   WEDNESDAY, DECEMBER 2, 2009,
                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:07 a.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
    Leahy, Chairman of the Committee, presiding.
        Present: Senators Leahy, Whitehouse, Specter, Franken, and
    Sessions.

    OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
                          THE STATE OF VERMONT

        Chairman Leahy. Good morning. Senator Sessions, who is
    virtually always here, is tied up in the Armed Services
    Committee meeting on Afghanistan, and other members will be
    going back and forth to that Committee. We can well understand
    why. It is an extraordinarily important issue. Those of us who
    met with the President yesterday before he left for West Point
    understand the significance. Whether you are for or against the
    position he has taken, it is something that every member of the
    Senate and the House will have to be looking at.
        For this morning, we are going to examine the impact of two
    recent Supreme Court decisions and what they have done to
    Americans' access to the Nation's court system. I am doing this
    because I have been worried about the increasingly activist
    bent of the Supreme Court, and it has probably become in many
    ways the most activist Supreme Court certainly since my days in
    law school, and I am worried about the ignoring of both
    precedent and of Congressional legislation.
        A few years ago, a slim majority of the Supreme Court
    undercut the landmark precedent of Brown v. Board of Education
    and its guarantee of equal justice. Now, we all know--and I
    remember it very well--that at the time Earl Warren spent a
    couple years to get a unanimous opinion in Brown v. Board of
    Education because there was going to be such a revolutionary
    but such a long overdue decision in this country. But a slim
    majority undercut it, and at that time Justice Breyer observed
    that ``it is not often in the law, that so few, have so
    quickly, changed so much.'' I agree with Justice Breyer. And
    his comment reflects the power that a mere five Justices on the
    Supreme Court can have in our democracy. Unlike the unanimous
    decision in Brown v. Board of Education, their actions need not
    be unanimous. They do not need consensus. In the very year a
    Justice is confirmed, he or she can be the deciding vote to
    overturn precedent and settled law.
        This is now the fifth hearing in 18 months held to
    highlight cases where literally five Justices--the slimmest
    majority--have changed the legal landscape by overturning
    precedent and undermining legislation passed by Republicans and
    Democrats together in Congress. Today's hearing is yet another
    reminder about how just one vote on the Supreme Court can
    impact the rights and liberties of millions of Americans.
        Today, we focus on how a thin majority of the Supreme Court
    has changed pleading standards. The issue may sound abstract,
    but certainly not to those who study the Court. As we
    understand it, the ability of Americans to seek redress in
    their court system is fundamental. In a pair of divided
    decisions, the Court restricted a petitioner's ability to bring
    suit against those accused of wrongdoing. The Court essentially
    made it more difficult for victims to proceed in litigation
    before they get to uncover evidence in discovery. I think it is
    just the latest example of judicial activism.
        For more than 50 years, judges around the Nation enforced
    longstanding precedent to open courthouse doors for all
    Americans. In the 1957 decision of Conley v. Gibson, the
    Supreme Court held that a plaintiff's complaint will not be
    dismissed if it sets out a short and plain statement of the
    claim, giving ``the defendant fair notice of what the claim is
    and the grounds upon which it rests.'' This precedent reflected
    the intent behind the Federal Rules of Civil Procedure, adopted
    by Congress before I was born, to set pleading standards to
    allow litigants their day in court. Lawyers call this ``notice
    pleading.'' The lawyers distinguish it from specific fact
    pleading. The underlying intent has been to allow people their
    day in court and not to require them to know everything or have
    all the evidence they will need to prove their claim at the
    outset. Much of that evidence may be in the hands of the
    defendant and the defendant's wrongdoing, after all. Allowing
    the case to begin with a good-faith claim permits the parties
    to engage in evidence gathering. Of course, to prevail, then
    the party needs to establish a claim by a preponderance of the
    evidence so that by the end of the case the claim of wrongdoing
    will be fairly tested. Any one of us who ever practiced law
    knows that. You file that, you have discovery. You go through
    the usual things, and then the case may expand. You may be
    amending your pleading. You may add additional counts. Every
    lawyer--every lawyer, plaintiff or defendant--knows this.
        But in two cases--Iqbal and Twombly--the Supreme Court
    abandoned the 50-year-old precedent established in Conley--a
    precedent that every lawyer has always followed, certainly that
    I did when I was in private practice. Now the Court requires
    that prior to discovery, a judge must assess the
    ``plausibility'' of the facts of an allegation. In his dissent,
    Justice Stevens called Twombly a ``dramatic departure from
    settled procedural law'' and ``a stark break from precedent.''
    He predicted that this decision would ``rewrite the Nation's
    civil procedure textbooks'' because it ``marks a fundamental--
    and unjustified--change in the character of pretrial
    practice.'' Justice Souter, the author of the Twombly decision,
    dissented in Iqbal because he believed the five-Justice
    majority created a new rule that was ``unfair'' to plaintiffs
    because it denied them a ``fair chance to be heard.''
        But these activist decisions do more than ignore precedent;
    they also pose additional burdens on litigants seeking to
    remedy wrongdoing. And as a result of this judge-made law,
    litigants could be denied access to the facts necessary to
    prove wrongdoing. As this Committee learned last year from the
    testimony of Lilly Ledbetter, employees are often at a
    disadvantage because they do not have access to the evidence to
    prove their employer's illegitimate conduct, and if the
    employer is involved in illegitimate conduct, usually they do
    not broadcast that fact and you have to discover it otherwise.
    In fact, I believe that her civil rights claim would not have
    survived a motion to dismiss under the new standard. Our
    justice system cannot ignore the reality that a defendant often
    holds the keys to critical information which a litigant needs
    to prove unlawful conduct.
        By making the initial pleading standard so much tougher for
    plaintiffs to reach, the conservative majority on the Supreme
    Court is making it more difficult to hold perpetrators of
    wrongdoing accountable. I believe this will result in
    wrongdoers avoiding accountability under our laws.
        Of course, wealthy corporate defendants and powerful
    Government defendants of either a Democratic or Republican
    administration would prefer never to be sued and never to be
    held accountable. These new judge-made rules will result in
    prematurely closing the courthouse doors on ordinary Americans
    seeking the meaningful day in court that our justice system has
    provided.
        As we will hear from our witnesses today on the impact of
    these two cases, we will hear that it has been immediate and
    expansive. According to the National Law Journal, 4 months
    after Iqbal, more than 1,600 cases before lower Federal courts
    have cited this. This precedent has the potential to deny
    justice to thousands of current and future litigants who seek
    to root out corporate and governmental wrongdoing.
        We all know that a right without a remedy is no right at
    all. That is what is at stake here. And I fear that these
    decisions are not isolated rulings but, rather, part of a
    larger agenda by conservative judicial activists to undermine
    Americans' fundamental rights. The Seventh Amendment to the
    Constitution guarantees the right of every American to a jury
    trial. That guarantee is undermined if the rules for getting
    into court are so restrictive that they end up closing the
    courthouse door.
        I thank Senator Whitehouse, the Chairman of the
    Subcommittee on Administrative Oversight and the Courts, for
    working to hold this hearing. And I know that he, when I have
    to leave, is going to take over chairing it and rely on his own
    experience in that.
        Did you want to add anything before we go to the witnesses?
    Feel free.
        Senator Whitehouse. I have a statement, but if we could
    just move along.
        Chairman Leahy. Then we will call as the first witness--and
    I thank Senator Specter and Senator Franken also for being
    here. Senator Specter especially has spoken out numerous times
    about the courts undermining what has been legislative intent.
        John Payton is the Director-Counsel and President of the
    NAACP Legal Defense Fund. He is the sixth person to lead LDF in
    its 67-year history. He continues the legacy of a historic
    organization started by Thurgood Marshall. He was previously a
    partner in the Wilmer Hale law firm, and he received his law
    degree from Harvard University. Mr. Payton is not a stranger to
    this Committee at all.
        Please go ahead, sir.

    STATEMENT OF JOHN PAYTON, PRESIDENT AND DIRECTOR-COUNSEL, NAACP
       LEGAL DEFENSE AND EDUCATIONAL FUND, INC., WASHINGTON, D.C.

        Mr. Payton. Good morning, and thank you for inviting me to
    testify at this really very important hearing. I agree with
    Chairman Leahy about how important this is.
        The brief answer to the question posed by the title of the
    hearing, ``Has the Supreme Court limited Americans' access to
    courts?,'' is ``Yes.'' I have submitted written testimony, and
    I am not going to go over all of that written testimony. But I
    thought in my oral remarks I would try to put this in context
    to actually explain how I see what the stakes are here, what is
    at issue here.
        The Legal Defense Fund is the country's first civil rights
    law firm. I believe we remain the country's finest civil rights
    law firm. We were founded in 1940--which is just as the Federal
    Rules went into effect. We have used those rules to great
    effect. Relying on the Constitution and the laws and those
    rules, we brought civil rights and human rights cases on behalf
    of African Americans, Hispanic Americans, Asian Americans,
    white Americans, men and women, straight and gay. We have
    helped create an anti-discrimination principle that applies to
    employment, public accommodations, education, housing, union
    representation, police treatment, voting, and economic justice.
        The ability to enforce rights created power in the people
    who were the victims of discrimination. That is, rights create
    power. When an aggrieved person--an African American who is
    denied the low mortgage rate that is offered to a white person,
    for example--when an aggrieved person can assert rights in
    court, it empowers that individual. Those rights can be
    asserted against the Government, from the local to the Federal.
    Those rights can also be asserted against private parties, from
    individuals to a large corporation.
        But as the Chairman said, for those rights to be real, they
    must be enforceable. That is, if there is a right without a
    remedy, it is not a right. For those rights to be real, they
    must be enforceable, and that enforceability requires access to
    courts. One of the critical elements of our system of justice
    is access to courts. If that access is curtailed, the power of
    victims of discrimination to redress wrongdoing is also
    curtailed.
        This fundamental principle of open access is now threatened
    in very real terms by two recent Supreme Court decisions,
    Twombly and Iqbal. Although Iqbal was decided just this year,
    these decisions have already resulted in the results that
    Chairman Leahy described in the National Law Journal article.
    We are already seeing people denied access to courts, and when
    they are denied access to courts, their rights are being
    curtailed. By suddenly imposing new pleading requirements that
    are far more stringent than the longstanding standard set forth
    in the Federal Rules, the Supreme Court has erected a
    significant barrier that operates to deny victims of
    discrimination their day in court. This is nothing short of an
    assault on some of our most cherished democratic principles.
        As District Judge Jack Weinstein recently commented about
    the detrimental impact of this heightened pleading standard,
    ``[A] true `government for the people' should ensure that `the
    people' are able to freely access the courts and have a real
    opportunity to present their cases.''
        Civil rights always matter. Human rights always matter. But
    they matter especially right now. The recession may be over for
    Wall Street, but for increasing numbers of people who have lost
    their jobs, it is only getting worse. We have double-digit
    unemployment overall.
        The Washington Post reported last week that the
    unemployment rate for African-Americans is 34.5 percent. Those
    are Depression levels. Those are Depression-era levels.
        Discrimination thrives in this environment. Everybody knows
    that. Not having a job often means people feel as though they
    are not really a part of their community. They lose their
    dignity. Not having a job because of racial discrimination
    makes people feel like they are not part of the larger society.
    Having enforceable rights is critical to maintaining our social
    cohesion and inclusiveness.
        We have worked very hard, the Legal Defense Fund, and I
    would say the country as a whole, to erect the set of laws that
    actually bring us together and allow us all to have rights.
        The Legal Defense Fund believes that Congress should act
    immediately to prevent the Supreme Court's ruling in Iqbal and
    Twombly from further undermining access to courts for victims
    of discrimination.
        I want to thank Senator Specter and this Committee for
    moving so urgently in trying to address this issue, and I look
    forward to working with Senator Specter and with the Committee
    on this issue. Given the important policy objectives behind our
    Nation's civil rights laws and the hard-fought battles to
    secure their passage, Congress has a substantial interest in
    robust enforcement of the civil rights laws. It should treat
    seriously threats that can, as one court warned, ``chill'' the
    pursuit of civil rights claims. Congress should take steps to
    ensure that persons can enter the courthouse door when seeking
    protection under civil rights statutes. There is no more
    important issue with respect to our civil rights than the issue
    that is before this Committee today. If you close the door,
    then people cannot enforce rights. And if they cannot enforce
    rights, those rights do not exist for them.
        Thank you very much.
        [The prepared statement of Mr. Payton appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much, Mr. Payton. I
    apologize for having stepped out of the room there. I had a
    call I had to return. I have read your testimony, and I
    appreciate it.
        Greg Garre recently served as Solicitor General in the Bush
    administration. I think that is where we first met. And he
    received his law degree from the George Washington University,
    currently is a partner at Latham & Watkins here in Washington,
    D.C.
        Mr. Garre, thank you for taking the time. Please go ahead,
    sir.

    STATEMENT OF GREGORY G. GARRE, PARTNER, LATHAM & WATKINS, LLP,
     WASHINGTON, D.C., AND FORMER SOLICITOR GENERAL OF THE UNITED
                                 STATES

        Mr. Garre. Thank you, Chairman Leahy, and thank you,
    members of the Committee. It is an honor to appear before you
    today and participate in this important discussion on the
    Supreme Court's recent decisions in Ashcroft v. Iqbal and Bell
    Atlantic v. Twombly.
        Nearly a year ago to this day, I had the privilege of
    appearing before the Supreme Court and arguing the Iqbal case
    as Solicitor General of the United States. The Court's decision
    in Iqbal, which followed and applied its Twombly decision,
    provides important guidance on the threshold standards for
    pleading claims in Federal court. The Iqbal and Twombly
    decisions stand for a proposition that ought to be
    noncontroversial and come as little surprise: In order to
    subject a defendant to the demands of civil litigation,
    conclusory and implausible allegations of wrongdoing will not
    suffice. Rather, a plaintiff must provide allegations that, if
    true, permit a reasonable inference that the defendant is
    liable for the alleged misconduct.
        Far from bolts out of the blue, the Iqbal and Twombly
    decisions are firmly grounded in prior precedent at both the
    Supreme Court and the appellate level. Indeed, courts have for
    decades recognized that broad and conclusory allegations of
    wrongdoing are not sufficient to state a claim for relief, and
    that while it is generous, the Federal notice pleading regime
    it is not limitless. The Iqbal and Twombly decisions are a
    natural outgrowth of that well-settled law, and the decisions
    serve important interests. In particular, as the Iqbal case
    underscores, they ensure that Government officials are not
    distracted from performing their duties by the demands of civil
    discovery and responding to implausible claims of wrongdoing.
    As Justice Stevens recognized more than 25 years ago,
    protecting Government officials from such burdens is critical
    to ensuring that our officials ``perform their sensitive duties
    with decisiveness and without potentially ruinous hesitation.''
        If, as Second Circuit Judge Jose Cabranes observed, Mr.
    Iqbal were successful in obtaining discovery from the former
    Attorney General and Director of the FBI based on his
    conclusory allegations, then ``little would prevent other
    plaintiffs from claiming to be aggrieved by national security
    programs and policies from following the blueprint laid out by
    this lawsuit to require officials charged with protecting our
    Nation from future attacks to submit to prolonged and vexatious
    discovery processes.'' Fortunately, that blueprint does not
    exist today thanks to the Supreme Court's decision in Iqbal.
        In the wake of the Twombly and Iqbal decisions, some
    critics have suggested that the decision will usher in a sea
    change in Federal pleading practice and result in the wholesale
    dismissal of claims. The evidence simply does not bear this
    out. The most comprehensive study of which I am aware is now
    being conducted by the Advisory Committee on Civil Rules, which
    is comprised of judges and practitioners who are experts in
    civil procedure. That study, which has looked at every
    appellate decision discussing and citing the Iqbal case,
    concludes that the decisions have not resulted in any major
    change in pleading practice.
        Particularly in light of the lack of evidence of any
    wholesale change in pleading practice at this time,
    Congressional action is not warranted at this time.
        Moreover, if the proposed legislation were enacted, it
    would not only create great uncertainty and unpredictability as
    to pleading standards, but substantially lower the standards
    from the law that existed at the time of Twombly and Iqbal. In
    particular, legislation that would mandate the so-called ``no
    set of facts'' language from Conley v. Gibson would be unsound.
    Conley's no set of facts language has never been taken
    literally by the lower courts, and as seven Justices, led by
    Justice Souter, recently observed, Conley's ``no set of facts''
    language has been ``questioned, criticized, and explained away
    long enough.'' Mandating that standard would be a recipe for
    conflict and confusion in the lower courts, not to mention an
    invitation for baseless and implausible lawsuits.
        Finally, there is a process for monitoring the situation
    and responding, if need be: the judicial rulemaking process
    established by the Rules Enabling Act. The Rules Committees,
    which are comprised of the Nation's top experts on Federal
    practice and procedure, are particularly well suited to
    evaluate the situation and determine whether any response is
    warranted. With respect to this Committee, there is no reason
    for Congress at this time to supplant the time-honored judicial
    rulemaking process here.
        Thank you, Mr. Chairman. I look forward to answering the
    Committee's questions.
        [The prepared statement of Mr. Garre appears as a
    submission for the record.]
        Chairman Leahy. Well, thank you, Mr. Garre, for being here.
    You obviously know that maybe some will disagree with your
    testimony, but as I have found before, you have stated your
    position very succinctly, and I appreciate that.
        Professor Stephen Burbank is currently the David Berger
    Professor for the Administration of Justice at the University
    of Pennsylvania Law School. He teaches classes in civil
    procedure and received his law degree from Harvard University.
        Professor, we are delighted to have you here. Please go
    ahead, sir.

    STATEMENT OF STEPHEN B. BURBANK, DAVID BERGER PROFESSOR FOR THE
       ADMINISTRATION OF JUSTICE, UNIVERSITY OF PENNSYLVANIA LAW
                   SCHOOL, PHILADELPHIA, PENNSYLVANIA

        Mr. Burbank. Thank you, Chairman Leahy and members of the
    Committee. Thank you for inviting me to testify about the
    vitally important question whether recent decisions of the
    Supreme Court have limited Americans' access to court. I
    commend the Committee for recognizing the serious potential for
    damage posed by these decisions. I would like specially to
    commend Senator Specter for his early action in introducing a
    bill to overrule the Court's decisions, thus signaling concern
    to the bench, the bar, and the public, and stimulating interest
    and debate. Appendix A to my prepared statement includes a
    draft substitute amendment for the Committee's consideration.
    It takes a somewhat different approach that was inspired by a
    provision in the 1991 Civil Rights Act, reflecting my view that
    the primary purpose of any legislation responding to the
    Court's decisions should be to restore the status quo until and
    unless careful study, enabled by a process that is open,
    inclusive, and thorough, supports the need for change.
        I am concerned that the Court's decisions in Twombly and
    Iqbal may contribute to the phenomenon of vanishing trials, the
    degradation of the Seventh Amendment right to jury trial, and
    the emasculation of private civil litigation as a means of
    enforcing public law. I am particularly concerned because in
    rendering them the Court evaded the statutorily mandated
    process that gives Congress the opportunity to review, and if
    necessary to block, prospective procedural policy choices
    before they become effective. Both the process used to reach
    these decisions and their foreseeable consequences undermine
    democratic values.
        Of course, no one yet knows enough about the impact of
    Twombly and Iqbal to state with confidence that they will cause
    a radical change in litigation behavior or the results of
    litigation. Still, Appendix B to my prepared statement contains
    a sample of many lower-court cases suggesting or making
    explicit that complaints have been dismissed that would not
    have been dismissed previously, and early empirical work
    suggests that Twombly and Iqbal have indeed had a
    disproportionately adverse impact on the usual victims of
    ``procedural'' reform--civil rights plaintiffs.
        Moreover, the relevant question should be, in my opinion:
    Who should bear the risk of irreparable injury? In my view, it
    should not be those usual victims of ``procedural'' reform, and
    it should not be the intended beneficiaries of Federal statutes
    that Congress intended to be enforced through private civil
    litigation.
        Notwithstanding recurrent pressure to authorize fact
    pleading in certain categories of cases, the Supreme Court
    repeatedly insisted that such a change would require rulemaking
    or legislation, and in recent years, the Rules Committees of
    the Judicial Conference abandoned proposals to adopt fact
    pleading across the board. In light of this history, Twombly
    and Iqbal prompt the question: What changed other than the
    membership of the Supreme Court? My prepared statement
    identifies what in the architecture of these decisions may lead
    to mischief, both of the sort that the framers of the original
    Federal Rules sought to avoid and a whole new brand of mischief
    reposing in a generally applicable plausibility requirement
    that depends upon ``judicial experience and common sense.''
        I conclude, in any event, that the defects of process,
    institutional competence, and democratic accountability
    underlying the Court's decisions are sufficiently serious,
    standing alone, to warrant legislation requiring a return to
    the status quo ante until they have been cured by a new (and
    very different) process.
        I usually avoid the term ``judicial activism'' because, in
    my experience, people use it as a label to describe court
    decisions they do not like without reference to an objective
    standard. Twombly and particularly Iqbal are examples of
    judicial activism according to an objective standard--namely,
    the Enabling Act and the Court's own decisions distinguishing
    judicial interpretation from judicial amendment of the Federal
    Rules., For the Court has told us that ``we are bound to follow
    a Federal Rule as we understood it upon its adoption, and we
    are not free to alter it except through the process prescribed
    by Congress in the Rules Enabling Act.''
        Twombly and Iqbal's defenders must pretend that
    interpretation is a process sufficiently capacious to
    accommodate:
        First, the abandonment of the system of notice pleading
    that the drafters of the original Federal Rules intended, that
    Congress and the bar were told in 1938 had been implemented in
    the Federal Rules, and that the Supreme Court embraced as early
    as 1947;
        Second, its replacement by a system of complaint parsing
    that is hard to distinguish from the complaint parsing under
    Code pleading that the drafters of the original Federal Rules
    explicitly rejected;
        And, third, a wholly new general requirement of
    plausibility.
        I understand that the difference between interpretation and
    judicial lawmaking is one of degree rather than kind, but here
    the degrees of separation approach 180.
        In sum, comparing the role that those who wrote the Federal
    Rules envisioned for pleading and what they thought could
    fairly be demanded of plaintiffs filing complaints with the new
    world celebrated by Twombly and Iqbal's defenders leaves no
    doubt that the Court in those cases ignored previous
    acknowledgments that it has no power to rewrite the rules by
    judicial interpretation. One can only wonder at the spectacle
    of Justices who deride who deride a ``living Constitution''
    enthusiastically embracing living Federal Rules. From this
    perspective, the legislation I favor would bring back the
    Federal Rules in Exile.
        [The prepared statement of Mr. Burbank appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much, Professor.
    Incidentally, I agree with what you said about Senator Specter.
    This is an area where both publicly but also in many, many
    conversations we have had privately, when he was Chairman of
    this Committee and otherwise, he has taken that position.
    Senator Specter has been nothing but totally consistent in that
    regard, and I applaud him for that. I am glad you mentioned
    that.
        Mr. Payton, the Iqbal decision was issued just 6 months
    ago, and it involves technical procedural questions. One of the
    things I have heard from people when we scheduled this hearing,
    they said, ``Why not just wait until the new standard gets
    sorted out by the lower courts or by the Civil Rules Committee
    of the Judicial Conference? '' How would you respond to that?
    Why not just wait? Why should we act?
        Mr. Payton. Well, here is what we know----
        Chairman Leahy. Is your microphone on, sir?
        Mr. Payton. Here is what we know and why we really cannot
    wait. In that short period of time, the decision has had an
    effect on the cases I was talking about, civil rights cases,
    and it has resulted in many of them being dismissed that
    otherwise would not have been dismissed. Those victims of
    discrimination, those alleged victims of discrimination, they
    cannot wait. Their cases were thrown out. And every day we go
    forward, more will be thrown out.
        Let me put this in--I do not want to overstate this, and I
    think I did not overstate it. I am not saying that all civil
    rights cases are being dismissed. I am not saying that we know
    enough to say that there has been a wholesale abandonment of
    civil rights cases. But we know enough right now to know that
    Iqbal has had a very harmful effect on substantial numbers of
    civil rights cases. I do not think there is any question about
    that. The cost of waiting is thousands of cases being thrown
    out that otherwise would have proceeded and would have been
    found to be meritorious. So waiting has an enormous price and
    cost, I would say, to the fabric of our society. People who are
    victims of discrimination will be foreclosed from proceeding to
    vindicate their rights. If you cannot enforce your rights, you
    do not have rights. That is why we cannot wait.
        Chairman Leahy. Thank you.
        Mr. Garre, you would disagree, I assume. Make sure your
    microphone is on.
        Mr. Garre. I certainly agree with Mr. Payton that there has
    not been any evidence of a wholesale change in pleading
    practice. I think the study that I referred to in my testimony
    being undertaken by the Advisory Committee on Civil Rules
    indicates that courts have not seen a major change in pleading
    practice.
        One of the questions that that study raises is with respect
    to the cases that have been dismissed--and there have been some
    cases that have been dismissed, civil rights cases, other
    cases. We need to know more. We need to know whether or not
    meritorious claims are being dismissed. We need to know whether
    these are cases that would have been dismissed under the law
    before Iqbal and Twombly. Are there cases that are being
    dismissed because of any change in the law from Iqbal and
    Twombly? And we also need to know--and I think this is very
    important. We need to know where cases are dismissed, what is
    happening when plaintiffs are given liberal leave to amend
    their complaints and come back and attempt to state new claims.
    At that point, are plaintiffs coming back with sufficient
    allegations?
        One of the things that the courts have made clear--and this
    has not changed at all--is that there is liberal leave for
    amending pleadings granted under the Federal Rules, Federal
    Rule 15. In fact, the Iqbal case was remanded, so the plaintiff
    could be given an opportunity to amend.
        So I think there is a lot that we need to know.
        Chairman Leahy. I am going to ask Professor Burbank the
    same question, but you say you have to know if they are
    meritorious cases. If they are dismissed, how are we ever going
    to know if they are meritorious?
        Mr. Garre. Well, what I mean by that, Senator, is that
    these are cases that would have met the pleading threshold
    under Rule 8 even if you went back and looked at the law before
    Twombly and Iqbal, which did make clear that, number one,
    conclusory allegations were not sufficient to state a claim;
    and, number two, that you had to state something more at
    reasonable inference for believing there is wrongdoing.
        Professors Wright and Miller, in their famous treatise said
    before the Twombly case, I quote, ``The pleading must contain
    something more than a statement of facts that really creates a
    suspicion of a legally cognizable right of action.''--which I
    think is the same concept that the Supreme Court has expressed
    in the plausibility, a reasonable inference of wrongdoing.
        So I think that the quarrel that I would have with Mr.
    Payton is only insofar as let us look at the cases that have
    been dismissed and make an assessment as to whether these are
    cases that are being dismissed as a result of some new standard
    or these are cases that would not have met the threshold
    standard to begin with.
        Chairman Leahy. But I also worry--I mean, we could look at
    them. We could look at them, and we could spend years looking
    at them, and by then you may have no remedy at all because of
    the time. But I understand your answer.
        Professor Burbank, the same question to you, sir. Why
    shouldn't we just wait?
        Mr. Burbank. Thank you. I think, in response to Mr. Garre's
    remarks, it is important to note that the cases contained in
    Appendix B to my prepared statement are cases only following
    Iqbal--not following Twombly, but only following Iqbal--in
    which it is suggested or made explicit that these are
    complaints that would have survived under the previous regime.
        Second, I am sorry, but the memorandum that Mr. Garre
    refers to is not a study at all. It is a summary of cases by a
    law clerk. Now, I have great respect for law clerks. I was once
    a law clerk myself. And I have great respect for the person for
    whom----
        Chairman Leahy. So was I.
        Mr. Burbank. For the judge for whom this person is a law
    clerk. But it is a summary of cases, appellate decisions and a
    non-random sample of district court cases. It is not a study.
    Mr. Garre is confused. The Federal Judicial Center, on behalf
    of the Rules Committees, is conducting a study looking at
    actual docket entries. That is going to take quite a while.
    That is going to take quite a while. But the Kuperman--if that
    is her name--memorandum is not a study at all. There is a study
    underway, and it will take a good deal of time.
        Now, I agree with Mr. Payton that we should not wait, you
    should not wait, the Congress should not wait, because we are
    talking here about irreparable injury. These are cases, when
    they are dismissed, they are not going to be able to be brought
    back. The law of preclusion, even if there is a change in the
    pleading law, will prevent these people from ever having their
    rights enforced. Moreover, there is a risk of irreparable
    injury not just to individual plaintiffs who are now being
    dismissed under Twombly/Iqbal, but to the values and policies
    that underlie a whole host of Congressional statutes that
    Congress intended to be enforced through private civil
    litigation.
        Chairman Leahy. My time is exhausted, but what I worry
    about in this whole thing is a 5-4 decision which, at least in
    my impression, changes precedent dramatically, changes our
    Rules of Civil Procedure by Court fiat.
        I have been at meetings of the Judicial Conference. The
    Chairmen and Ranking Members of both the Judiciary Committees
    of the House and Senate are always invited to speak there. If
    the Chief Justice wanted to change the Rules of Civil
    Procedure, frankly, I think it would have been a lot better to
    have asked the Judicial Conference, raise it with them, ask for
    changes. You have got the Rules Enabling Act. You have got all
    the other processes flowing through, and at least there would
    be a great deal of input rather than five people--I am not sure
    that any of them have been trial judges, but to do this, it
    just bothers me a great deal.
        But, anyway, my time is up. I am going to turn the gavel
    over to Senator Whitehouse, and I thank you all very much.
        Senator Whitehouse [presiding]. Thank you, Chairman. By
    virtue of my role as stand-in Chair for the remainder of the
    hearing, the witnesses will be enjoying my company through the
    entire hearing. And so I will put myself at the end of the list
    and yield my time to Senator Specter, who will be followed by
    Senator Franken and anybody else who should arrive, and then I
    will bat clean-up toward the end.
        Senator Specter.
        Senator Specter. Mr. Garre, we have the Rules Enabling Act,
    which explicitly set forth the procedures for an Advisory
    Committee on Civil Rules, then a Standing Committee on Civil
    Rules, the full Judicial Conference, and the Supreme Court, and
    then Congress has the last word. Isn't what the Supreme Court
    has done here in the face of contravening that express
    legislation engaging in, as Professor Burbank says, ``judicial
    lawmaking'' ?
        Mr. Garre. Senator Specter, I do not think that is what the
    Supreme Court has done here. I think it has done here what is
    done in numerous cases dealing with questions arising under the
    Federal----
        Senator Specter. Well, if it has done it in numerous cases,
    that does not absolve it from judicial lawmaking. They do that
    all the time, perhaps not quite as flagrantly.
        Mr. Garre. I think what the Court is doing here is
    interpreting Rule 8, and the language in Rule 8, in particular,
    it says ``short and plain statement of the claim'' showing that
    the plaintiff is entitled to relief. And I think if you look at
    the Twombly case, which was a 7-2 decision written by Justice
    Souter, where there was widespread consensus on the Court of
    what the standard should be, they are interpreting Rule 8, and
    that is a perfectly legitimate function for the Supreme Court.
        Senator Specter. Professor Burbank, isn't that a highly
    strained interpretation of what went on here? Isn't this
    draconian, to use a better word than ``sea change,'' in the
    pleading rules?
        Mr. Burbank. Yes, Senator. It is a fairy tale, and for
    those who are being kicked out of court, it is a grim fairy
    tale. That is with one ``M.'' This is not interpretation under
    any reasonable interpretation of that word.
        Indeed, I would note that, to my knowledge, no Court had
    ever previously relied on the word ``showing'' for the purpose
    for which the Court relied on it in Twombly and Iqbal. This is
    not interpretation. These cases cannot, if you will excuse me,
    plausibly be tied to the Supreme Court's own previous cases.
        If you look at the cases on which Mr. Garre relies in
    attempting that, you will find that two of them were authored
    by Justice Stevens. Guess what? Justice Stevens dissented in
    both Iqbal and Twombly. You will find that another one--and
    there are only four or five cases cited by Mr. Garre--authored
    by Justice Breyer, was a unanimous opinion, which means that it
    was joined by Justice Stevens. And then if you look further at
    the details of those cases, you will find that they do not, in
    fact, come close to what the Court did in Iqbal and Twombly,
    which, of course----
        Senator Specter. Professor Burbank----
        Mr. Burbank.--is why Justice Stevens dissented.
        Senator Specter [continuing]. I hate to interrupt you, but
    you have already convinced me, and I want to turn to Mr.
    Payton.
        Congratulations on what the NAACP Legal Defense Fund does
    and congratulations to you. And we do not have time to take up
    all of the meritorious claims which would be tossed out. And
    just a personal aside, this decision is a decision I found
    particularly disheartening, objectionable, because the first
    day in law school with Charles E. Clark, the author of the
    Rules of Civil Procedure, in 1938--then he was on the Second
    Circuit--talked about the notice pleading of Dioguardi v.
    Durning and getting away from common law pleading rules which
    had stifled meritorious claims, if there was something totally
    out of order, just using procedure to toss people out of court.
        We do not have time to take up all the areas where it is
    going to hurt, but none is more important than civil rights.
    And I would be interested in, as factual as you can be, about
    how this is going to undermine civil rights enforcement.
        Mr. Payton. Thank you very much. I think that that is what
    I go over in my written testimony, category by category, just
    how this has already undermined civil rights plaintiffs. You
    know, to put it in the context of your first question to Mr.
    Garre, the normal order of making changes in the Federal Rules
    would have resulted in a multi-year study by the various
    advisory committees into what the effect of any such changes
    would be on all sorts of cases, including civil rights cases.
        As far as I am aware, there was no concern given in either
    Iqbal or Twombly about the effect of those decisions on
    anything beyond the four corners of those decisions. And here
    we are now trying to deal with something that has had, I would
    say, very predictable consequences that are going to affect the
    ability of our civil rights plaintiffs to actually vindicate
    themselves when there has been no real exploration of that at
    all. And I think it is critical that we go back to the status
    quo, prior to Iqbal and Twombly, in order to preserve something
    that has been so important, I would say, to the fabric of our
    society. A person comes in and says that she is a black woman,
    that she applied for a job, and that she saw her application
    taken to the back room and she heard from somebody that it was
    put into a pile and no one reviewed her application. She brings
    that claim, and under Iqbal and Twombly, maybe she gets thrown
    out. Before Iqbal and Twombly, she gets discovery, and she
    actually gets to find the smoking gun.
        You know, there are smoking guns out there, and under the
    plausibility standard, maybe those cases get thrown out. If you
    are not thrown out, you can discover the smoking gun--and we
    all know all sorts of cases where, in the course of discovery
    the document shows up that, in fact, reveals that there was
    really an awful procedure that was occurring.
        We know the consequences right now of what has happened
    because of Iqbal. We know the consequences. They may be greater
    than we feared. But we know the consequences already have been
    harmful to very important civil rights, I would say, values we
    all share. Let us make sure we put that to an end.
        Senator Specter. Just a concluding statement. It is
    infrequent that we have such a blatant case of judicial
    lawmaking. There are lots of other cases which are not detected
    and not acted upon, and I am continuing the battle to televise
    the Supreme Court so there will be some public understanding.
    Well, the public is never going to understand this issue, but
    this Committee is moving faster. There is companion legislation
    in the House, and I hope that we are able to move promptly.
        There is one thing that there is unanimity on around here.
    It is hard to find something, but on judicial lawmaking, I
    think everybody agrees it ought not to be done.
        Thank you very much, Mr. Chairman.
        Senator Whitehouse. We are joined by the distinguished
    Ranking Member, who had important business with the Armed
    Services Committee earlier, and I would now call on him, if he
    wishes, to make his opening statement or simply questions the
    witnesses. Which would you prefer so the clock knows?
        Senator Sessions. Well, maybe a little of both.
        Senator Whitehouse. All right.

    STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
                               OF ALABAMA

        Senator Sessions. You know, one of the great events in my
    life was when I graduated from law school, in that year Alabama
    abandoned common law pleading and went to Federal Rules notice
    pleading. But prior to that, if you were going to file a
    lawsuit, you had to file a complaint that had some merit to it.
    You had to assert what rights you were filing under--Is this
    trespass? Is it negligence? Is it trespass on the case?--and
    create a whole body of pleading, demurrers, and such. It was a
    complicated process, and I felt we made progress when we moved
    away from that.
        But there has been a general sustained concern--and it is
    not against civil rights or anything else--that notice pleading
    becomes anything: ``I do not like it. I think maybe I was
    abused. Pay me money. I want to sue you, and I want to take 2
    years in court, and it will cost you $50,000, $500,000, and you
    will pay me, anyway.''
        So I think it is perfectly right that the Supreme Court
    would affirm a rule that if you cannot assert a facially
    plausible cause of action in your complaint, it ought not to go
    forward. If we are going to change the law--and Senator Specter
    has a bill to reverse the Supreme Court's ruling, which is
    supported by the Federal Committee on Rules, I understand, and
    I expect them to submit some communication to our Committee to
    explain their view on it. If we have a change, we really ought
    to tighten up this thing a little bit. The pendulum has swung
    so far. In law school, you know, the question of the professors
    was: Can you file a complaint on point paper? Remember, we
    heard that discussion.
        So that is my basic view of it. I do not see anything wrong
    with a requirement that a person who sues somebody at least be
    able to produce a coherent complaint so that it is facially
    plausible, but, you know, sorry I could not be here earlier. I
    look forward to examining more in-depth the different opinions
    that we have.
        Mr. Garre, is this some dramatic alteration of the law in
    the Supreme Court's decisions that represents a major change in
    the way courts have been handling complaints over the years?
        Mr. Garre. Thank you, Senator. No, the evidence that I have
    mentioned indicates that it has not been a drastic change. I
    referred to the memorandum being conducted under the auspices
    of the Advisory Committee, and Professor Burbank pointed out
    that that is being prepared by a law clerk for the Committee.
    If that is not good enough, I would point you to the statements
    of the Chair of that Committee, Judge Kravitz, who said earlier
    this fall that the courts were taking a fairly nuanced view of
    the Iqbal case.
        And I think you are quite right. Fundamentally the question
    is: Should it be enough for a plaintiff to present a conclusory
    and implausible claim to invoke the full machinery of the civil
    litigation process? Should it be enough for a plaintiff to come
    in with an implausible claim on its face, even accepting the
    allegations as true, to subject a defendant in any kind of
    case, whether it is a Government defendant in presenting
    potential interference with carrying out that person's duties,
    or another defendant. And I think if you go back and you look
    at the Supreme Court decisions that I cite in my testimony, and
    if you look at the legion of case law in the lower courts
    before Twombly, they recognize quite clearly that, no,
    conclusory allegations are not enough, and that, yes, you have
    to have an allegation that is plausible that supports a
    reasonable inference of wrongdoing.
        I think that is, all things speaking, a fairly low
    threshold that is consistent with the notice pleading regime,
    and I think it is well grounded in prior precedent.
        Senator Sessions. Well, a lot of complaints are out there
    that most any kind of person who feels aggrieved sues a large
    number of defendants, and hopefully they can somehow shake some
    money out of them. And, frequently, people will pay several
    thousands of dollars, even if they have no liability at all,
    rather than spend large amounts of money in defense. Is it
    true--I guess you lawyers, I have heard some of these lawyers
    charge $500 an hour. Well, you have been sued. You are in
    Federal court. And you have got to advise your client. Can you
    go in there and say to your client, ``Well, client, I do not
    think there is any problem here. I have spent 10 hours on it,
    and you now owe me $5,000.'' Or are you going to say, ``I
    better check this out. I do not want to get to court and be
    ambushed.'' And they spend 100 hours. It easily can happen in
    these cases, and for not a lot of good if a person cannot state
    a claim that has a facial plausibility to it that would justify
    going to court.
        I know the old rules were too restrictive. Massachusetts
    and Alabama stayed within the last two States, I think, that
    stayed in that area, and we moved totally to the notice
    pleading of the Federal Rules. I think it is better. But I am
    just not feeling that the law in America is being changed if
    the courts insist that at least you have a plausible complaint.
        The courts have dealt with this over the years as to what
    the notice pleading standard was set in Conley v. Gibson. It
    announced in Conley that it allowed dismissal only when the
    plaintiff can prove no set of facts to support his claim which
    would entitle him to relief. And courts have wrestled with
    that, no set of facts requirement for a number of years.
        Justice Souter in Twombly stated that the ``no set of
    facts'' standard has ``earned its retirement'' after ``puzzling
    the profession for 50 years.'' In short, the Conley standard
    was confusing and too vague to be useful. To clarify that, the
    Court adopted a plausibility standard which requires a claim to
    be plausible on its face and not a formulaic recitation of the
    elements of a cause of action. So, to me, that is kind of what
    the Court is talking about.
        Just briefly, Mr. Payton, I will let you respond. Has the
    Court there got it wrong? Has Justice Souter, writing for the
    majority, somehow committed a big error in saying that you have
    got to have a facially plausible complaint to go forward?
        Mr. Payton. Let me make two points here. I think that pre-
    Twombly and Iqbal, federal courts had no problem weeding out
    cases that lacked merit. I think Mr. Garre has referred to
    them, and you have referred to them. I think courts had no
    problem weeding them out. The problem with what the Supreme
    Court has done now is that Iqbal and Twombly are having a very
    harmful impact on cases that I believe everyone would agree
    should have been allowed to go forward.
        You say ``plausibility.'' Let me tell you the problem with
    plausibility. Plausibility requires the district judge to
    actually decide what in his or her sense is plausible. The
    Conley v. Gibson case--let me just use that case--is the
    implementation of a cause of action that was developed by
    Charles Houston, who was the founder of the Legal Defense Fund.
    He argued two cases in the 1940s, Steele and Tunstall, and the
    challenge in those cases--and it is the same challenge that is
    in Conley v. Gibson--is whether or not an all-white union has a
    duty to its black members, a duty of fair representation.
        When Houston argues those cases, there is no such legal
    requirement. He puts forward those facts, and he argues to the
    Court and he wins, and the Court says there is a duty of fair
    representation that the white union has to its black members.
    The same issue comes up in Conley v. Gibson. And the question
    is: Is there, in fact, that duty in the context of the facts in
    Gonley?
        If you simply said it is a plausibility standard, the
    plausibility standard would have knocked that case out. It
    would have knocked that case out. There are an awful lot of
    cases out there where civil rights plaintiffs would be out of
    court under a plausibility standard--even though today everyone
    in this room would acknowledge that those cases established
    principles that we cherish as what our civil rights laws ought
    to be.
        The way to go about doing any change in our Federal Rules
    is you do the study first to see what effects it has. If there
    is a concern about complex antitrust cases, let us see what we
    ought to do about complex antitrust cases, but do not throw out
    the civil rights cases in the wave of trying to deal with
    Twombly, which is a complex antitrust case.
        There is an order of things here that is really quite
    important, and the harm that we are now doing to our panoply of
    civil rights cases is completely undeserved and harms our
    entire society. That is my point. It harms our entire society.
        Senator Sessions. Well, I will look at that and just review
    it, but I do not think those complaints would be dismissed out
    of hand. I think you can formulate a complaint that a union has
    got a duty to represent all its members. So I think we can get
    overconcerned about the implications.
        Senator Whitehouse. Senator Franken.
        Senator Franken. Thank you, Mr. Chairman.
        I have got to say I am a little confused here on something,
    and basically it is what has happened since Iqbal, because Mr.
    Garre basically said that there is a study that said that
    nothing bad has happened, and Professor Burbank has said there
    was not a study really at all, it was just a summary. So I do
    not like being told something is a study and it is a summary. I
    mean, I think we have a right--the Ranking Member said that he
    is going to look back. He is sorry he arrived late, but he
    wants to look back at the difference of opinions. And I think
    we are all entitled to our opinions. But we arrive at opinions
    by looking at facts, and facts come from studies, not summaries
    and memoranda. And I think that in testimony to Congress, it
    should be accurate when you characterize something.
        So what is confusing to me is that Mr. Garre seems to be
    saying that nothing meritorious has been turned down, and Mr.
    Burbank says there has been, by virtue of this study, which was
    not a study, after all. So I guess, Mr. Payton, can you give me
    any examples of something meritorious in the civil rights area
    or in any area that you think should have been heard that was
    not?
        Mr. Payton. We go over some cases in my written testimony
    one by one. I think the dispute is a little bit different, so
    let me just say what the dispute is.
        What I heard Mr. Garre say is there has been no wholesale
    change. But that is a concession that there has been a change,
    and that change has clearly affected civil rights cases.
        Now, we do not know the full impact of that change, but we
    certainly know there has been a change that has harmed civil
    rights plaintiffs. I do not think there is any question at all
    about that. I do not think Mr. Garre is going to contest that
    there has been a change that has harmed civil rights cases.
        The extent of it we can argue about, but my point is we
    should not tolerate any change, and that is not the way we
    should be proceeding here. I believe the change is far larger
    than he thinks it is, but he concedes that there has been a
    change, I would say even a significant change. He says it is
    not a wholesale change, but if this were a wholesale change,
    this room would be filled with thousands of people in here
    talking about what has happened. We have only had 6 months
    since this decision.
        So the cases have not actually percolated up so that we
    could see them, but on the matters that really affect the
    fabric of our society, I do not think there is any question
    about that.
        You know, Senator Sessions, what I was saying about
    plausibility is that when you are trying to get the court to
    adopt a brand-new cause of action, that is why a district judge
    may not think it is plausible. A lot of civil rights law has
    been made by courts in complaints that we have filed, where we
    have asked courts to actually let us proceed so we can show
    that actually this ought to be part of the lexicon of our civil
    rights laws.
        Senator Franken. Can you give us just one example from your
    written testimony?
        Mr. Payton. Oh, sure. We had an example of a Hispanic man
    who was denied the ability to vote, and he filed a complaint
    challenging that, and he was thrown out of court on the grounds
    that he actually could not show enough to say that he was the
    victim of discrimination. That would have clearly passed under
    the standard in place 2 years ago.
        There is a whole raft of cases just like that where people
    used to be able to simply walk into Court and they now are
    being held to standards that are very difficult to meet, and in
    the case I just mentioned, the plaintiff may not have been able
    to amend his complaint to solve that. He could have brought
    that claim before and actually probably have prevailed on it.
        Senator Franken. So there has been a raft of complaints, a
    raft of cases like this?
        Mr. Payton. Yes.
        Senator Franken. In your judgment.
        Mr. Payton. Yes.
        Senator Franken. But a raft is short of wholesale?
        Mr. Payton. Here is what we do not know----
        Senator Franken. I am really trying to get some kind of
    distinction that means something to me.
        Mr. Payton. Yes. That distinction does not mean anything to
    me, either. There have been very substantial numbers of cases
    that have been harmed already. Whether that amounts to what
    someone would view as a wholesale change, I am actually
    indifferent to that. There have been substantial numbers of
    cases in the civil rights area that have been harmed. Those
    numbers of cases are only going to increase as we go through
    time.
        My point is we should not have wanted to harm any of those
    cases. That is not the way we should go about changing our
    Federal Rules and our notice pleading requirement.
        Senator Franken. So what we had was a study that was not a
    study saying it was not a wholesale change, but it is really a
    summary and there has been a raft of change.
        Mr. Payton. Substantial numbers of cases have been
    affected.
        Senator Franken. Thank you.
        Mr. Payton. Substantial numbers of cases have been
    affected.
        Senator Franken. Thank you, Mr. Chairman.
        Senator Whitehouse. Thank you, Senator.
        Mr. Garre, since you are the person here defending this
    opinion, let me ask you to defend the plausibility standard. I
    have a number of concerns about it, the first of which is that
    I do not find it anywhere else in the law. It seems to have
    been invented for this particular occasion.
        The second problem that I have with it is that, in my
    experience, misconduct is inherently implausible. It is
    implausible that the woman that Mr. Payton referred to who
    brought in her resume and who was African-American and when
    that went into the back office somebody would be so callous as
    to just throw that into the wastebasket without further
    analysis because she was black. That is implausible.
        It is implausible that a CEO with a bizarre fetish goes
    after a female staffer in some way that is inappropriate and in
    violation of her right to a workplace that is free of that kind
    of discrimination and harassment.
        It is always implausible, I would say, when there are these
    sort of, you know, bizarre or wrongful elements of conduct. So
    when you say that the standard is that something, if it is
    implausible, that is a strike against it, that seems to be
    putting a big thumb on the scales here and buttressing the
    status quo in which everybody is presumed to be a regular
    person who will not engage in this kind of conduct.
        And, last, it is so subjective. The whole notion of
    plausibility is the relationship between a hypothesis and a set
    of beliefs. It imports the judge's set of beliefs into the
    equation in a way that I have never seen before in the law. And
    it strikes me, particularly--and I know the very distinguished
    Senator from Alabama will disagree with me, but particularly
    when you have a bench that has been deliberately, in my view,
    populated with people who bring a particular worldview that
    when you say, ``OK, guys, bring that worldview into this
    discussion,'' you are stacking it up against the plaintiff. You
    have got a standard that has no meaning because it has never
    been used before. You have got a standard that is highly
    subjective. And you have got the sort of substantive bias
    against the plaintiff's general allegation because thank God
    those general allegations tend to be--guess what?--implausible
    because most people are good and do not engage in that kind of
    behavior.
        How can you defend the use of the word ``plausibility''?
        Mr. Garre. Thank you, Senator. First, if I could just make
    two preliminary remarks and then address your question.
        Senator Whitehouse. Sure.
        Mr. Garre. I wanted to refer to page 21 of my written
    testimony which describes the memorandum that I referred to
    earlier being undertaken by the Advisory Committee, and so I
    think it clearly sets forth what that memorandum is and what it
    says, and that refers to Senator Franken's questions, and I did
    want to state that for the record.
        Second, there was some reference earlier to the Conley case
    and the suggestion that that case would come out differently
    under Iqbal. And I would point the Committee to page 563 of the
    Twombly decision where the Court specifically says that the
    complaint in Conley ``amply'' stated a claim under the Federal
    Rules of Civil Procedure. What the Supreme Court took issue
    with was a sentence in Conley where it described the ``no set
    of facts'' language. The Court did not take issue with the
    result in Twombly--in Conley, and that is made clear in the
    Twombly decision.
        Senator Whitehouse. All right. Now----
        Mr. Garre. But let me answer your question.
        Senator Whitehouse. As former Solicitor General, I thought
    you would be better about answering questions.
        Mr. Garre. I appreciate that, Senator.
        Senator Whitehouse. We are not the Supreme Court, but we do
    want our questions answered.
        Mr. Garre. Plausibility is----
        Senator Sessions. Well, he maybe said a little comment on
    the preamble of your question. Excuse me.
        Senator Whitehouse. Now everybody is jumping in. It is
    getting harder and harder to get a question answered in a
    hearing around here.
        Mr. Garre. That is familiar from the Supreme Court,
    Senator.
        The plausibility standard is defined as a reasonable
    inference of wrongdoing. You look at the factual allegations,
    you assume that they are true, and then the question is: Is
    there a reasonable inference of----
        Senator Whitehouse. But they do not use the word
    ``reasonable.'' They use the word ``plausible.'' And that is,
    to me, a rather unique word.
        Mr. Garre. Senator, they define plausibility as a
    reasonable inference of wrongdoing. That is in the Court's
    decision. I can find----
        Senator Whitehouse. So you would be perfectly comfortable
    getting rid of the word ``plausible'' once and for all and
    switching it with ``reasonableness'' because that is what it
    really means?
        Mr. Garre. I think that is----
        Senator Whitehouse. You are comfortable dumping the
    plausibility standard and using a pure--using
    ``reasonableness'' wherever the word ``plausibility'' appears.
        Mr. Garre. I think that is the way that the Court itself
    described the standard, Senator. And if you go back and you
    look at the cases--and I have cited a number of them in my
    testimony--where they do not----
        Senator Whitehouse. Why would they--this is a Court that
    knows what words mean. The word ``reasonable'' is one of the
    most widespread words in jurisprudence. Why would they bring in
    a different word, ``plausible,'' if they did not intend to open
    the field to a more subjective point of view on the part of
    judges? Why not just use the word ``reasonable'' when
    ``plausible'' has a meaning that allows for more subjective
    application? I mean, if you look at the definition of
    ``plausible,'' it is ``superficially fair or reasonable or
    valuable, but often specious.'' Superficially, the quality of
    seeming reasonable--not being reasonable, seeming reasonable or
    probable. It is a word with a different meaning. Why would they
    use that word when reasonableness is a known, widely used,
    almost term of art in the law? Why bring in a word that is not
    a term of art and that imparts that subjective element that
    allows a judge to say, ``Well, that does not seem right to me,
    particularly when what you have in these cases is a fight of
    somebody who has been injured against the status quo that would
    like to sort of deprecate that injury or that it actually never
    happened?
        Mr. Garre. I think to the extent, Senator, you are
    concerned about confusion about what ``plausibility'' means, I
    think the decision answers it, and it is on page 1949 of the
    Iqbal decision, where the Court says, ``What do we mean by
    `plausibility'? We mean the plaintiff must plead `factual
    content' that allows the Court to draw a reasonable inference
    that defendant is liable for the misconduct alleged.''
        And if you look at the Iqbal case and the Twombly case, it
    explains what the Court meant----
        Senator Whitehouse. So you do not see any hint or whisper
    of mischief in the importation of this word ``plausible'' into
    these decisions?
        Mr. Garre. Well, I think as defined----
        Senator Whitehouse. On purpose.
        Mr. Garre [continuing]. By the Court's decisions, and we
    are interpreting the Supreme Court's decisions. And I think if
    you look at what ``plausibility'' meant in Iqbal and in
    Twombly--in Twombly you had a complaint that alleged an
    antitrust conspiracy among competitors who engaged in parallel
    conduct. And what the Court said is, ``Hey, we are going to
    accept these allegations as true.'' But that is not a plausible
    claim of wrongdoing because competitors deal in a parallel way
    all the time, and that is not illegal. You have got to provide
    more allegations to create an inference that there was
    wrongdoing.
        Senator Whitehouse. My point is the difference semantically
    between ``plausible'' and ``reasonable'' is that ``reasonable''
    connects more directly to an objective standard; whereas,
    ``plausibility,'' by its very definition, imports a subjective
    point of view of the judge and the Court. And I do not see a
    good reason for that step, from reasonableness to plausibility.
    There is an actual semantic step that is taken there, and they
    did not need to do it. They did do it. I cannot believe that
    they did not do it on purpose. And when the distinction is that
    clear, it is basically a license to legislate from the bench.
        Mr. Garre. And with respect, Senator, I think the Court did
    answer that concern in its decision when it defined----
        Senator Whitehouse. Well, they backed away from the term
    ``plausibility'' by defining it in terms of ``reasonableness,''
    but they still left it hanging out there to be used by judges
    in a way that has dominated the discussion today about this
    piece of judicial legislation, if you will.
        Mr. Garre. But I think a judge that read that word in the
    abstract without reading the Court's decision would not be
    doing his or her job, and I do not think we should assume that
    judges are disregarding the Supreme Court's decision.
        The one other thing I would say is that these are
    principles that were agreed to by seven Justices led by Justice
    Souter in the Twombly case, and in the Iqbal case, the
    disagreement on the Court was not about what the principles
    were. It was about whether they were misapplied in that case.
    So there is a widespread consensus on the Court that these are
    the proper principles and interpreting Rule 8 of the Federal
    Rules of Civil Procedure.
        Senator Whitehouse. Well, we will see. Anyway, do you wish
    to have a second round?
        Senator Sessions. Yes.
        Senator Whitehouse. We have to wrap up in about 10 minutes.
        Senator Sessions. OK, and I appreciate that, and you are
    very generous allowing me to go over.
        Senator Whitehouse. And I would like to reserve 3 minutes
    for closing, so take a second round.
        Senator Sessions. OK. Well, Justice Souter talked about the
    Conley standard should be ``best forgotten as an incomplete,
    negative gloss.'' That is what he said about it. And I guess
    the seven Justices all signed on to that opinion. Is that
    right, Mr. Garre? Mr. Garre, you are reading your book there,
    but looking at the Advisory Committee notes to Rule 11, which
    requires the plaintiff's attorney to file a legitimate
    complaint, it says this: ``What constitutes a reasonable
    inquiry may depend'' on factors including ``whether the
    pleading, motion, or other paper was based on a plausible view
    of the law; or whether he depended on forwarding counsel or
    other members of the bar.''
        First, ``plausible'' does strike me--and I agree with you,
    Mr. Chairman, it is an unusual word. It is not something that
    we have normally seen a lot in law, but this was at least used
    in the Advisory Committee notes to Rule 11. I guess it never--
    but it just strikes me is that the Court is saying that notice
    pleading does not mean anything, you have got some
    responsibilities to craft a complaint that sets forth a cause
    of action that is worthy of requiring the defending party to
    spend perhaps hundreds of thousands of dollars to defend
    himself. A lawsuit is a serious thing. It is not sufficient to
    say, ``I do not think that I was allowed to vote because of
    bias.'' I do not know what the complaint was in that voting
    case, but you have to assert some basis before the county or
    city or the State, whoever defended that case, has to spend all
    the money and go to a lawsuit. You have got to assert a
    complaint that has some value there.
        In looking at your remarks in other matters, there are
    quite a number of cases, including the Second Circuit and
    others who have adopted this, haven't they, Mr. Garre, and have
    not criticized it or expressed reluctance to follow the Supreme
    Court decision? They seem to have adopted it, for the most
    part. Is that correct?
        Mr. Garre. I think that is correct, Your Honor. I mean,
    certainly there is a debate----
        Senator Sessions. You get an ``A'' for saying ``Your
    Honor,'' but----
        [Laughter.]
        Senator Sessions. It does convince me that you have been in
    court before in your life, and that is a good thing.
        Mr. Garre. Thank you, Senator.
        Senator Sessions. Thank you. Mr. Chairman, I think you
    raise a good point. I do not know how you can word this, but in
    my view, creating--in my view, if we are going to write a
    statute to deal with the problem of pleading, I think the
    statute should be crafted in a way that requires a little more
    than the Conley case does, and I think practice and history
    shows us that as a matter of policy--not a lot more. A notice
    pleading is still a strong part of our law, and I support that.
    You do not want to throw people out of court for an unjustified
    reason. But everybody--the Rules of Procedure require that the
    law--the Rules of Procedure require some integrity and some
    coherence in the pleading, or else you do not go to court, you
    do not get in court. It is just that simple.
        So how we draw that line, I do not know. ``Plausibility,''
    I agree, Mr. Chairman, is a word that I am not that familiar
    with, but they have defined it. They seem to have reached a
    view of how it should be defined and how it should be applied
    in the cases. And I do not think we should jump over the Rules
    Committee and be rewriting that Rule of Procedure today. Let us
    see where it goes, and let us see what they will correspond
    with us and what they will tell us their view is.
        Thank you.
        Senator Whitehouse. I thank the Ranking Member.
        By way of sort of closing out, I guess, we have dealt with
    a lot of real specifics here, and I would like to do one of
    those sort of Google map bounces where you go way up before you
    come back down to the details again, and put what I think is
    the context for this decision forward, and that will, I guess,
    help define how plausible it is that this is a purely technical
    judgment by the Supreme Court and that it has no further
    purpose to close the courthouse doors.
        You know, I have said this before; I will say it again. We
    have seen over many years, I think, a very deliberate and
    surprisingly overt strategy to populate the courts, and
    particularly the Federal courts, with judges who have a
    particular political persuasion. It has been part of the
    Republican Party's proclaimed strategy, so it is no secret. And
    the fact that an enormous infrastructure has been set up to
    accomplish it, vetting infrastructure like the Federalist
    Society to get people tuned up for the judicial appointments
    down the road, and the result has been that a small and
    determined group of ideologically active judges can control the
    Supreme Court when it wishes by 5-4. And it is not just a
    potential. You have seen it work out in a whole variety of
    different areas, not the least of which is the discovery of a
    constitutional right to own guns that had previously gone
    unnoticed by Supreme Courts for 220 years, and suddenly 5-4,
    poof, it magically appears.
        And scholars like Jeffrey Toobin who have looked at the
    Court for a long time have noted that they seem to be
    persistently and deliberately driving the Court in a particular
    direction and have noted the consistency between that
    particular direction and the current political ideology of the
    present Republican Party.
        And when you have a decision like this that tends to close
    the courthouse doors to consequences against senior Government
    officials, particularly senior Bush administration Government
    officials, particularly senior Bush administration Government
    officials that were involved in the national security programs
    that have been the subject of great criticism--and, in fact,
    there is a report due out any day on the Office of Legal
    Counsel, what went wrong there that permitted the torture
    program to go forward--it is hard not to see this in a context
    when there are clear winners and losers associated with this.
    And the clear winners are the corporations who have their own
    independent effort to demean and revile the courthouse and the
    jury and try to make it look like it is a real impediment on
    them and an unfair burden to be sued. And I think that is
    frankly unconstitutional. I think that our constitutional
    structure is not just executive, legislative, and judicial
    branches; it also includes juries. Juries turn up three times
    in the Constitution, not just the Article III courts but juries
    themselves. And I think corporations would love a world in
    which the only Government officials that they ever had to
    answer to were ones who had been rendered supple to their views
    by campaign contributions and corporate money.
        Tampering with legislators, tampering with executives is
    something that is licensed by our campaign finance laws.
    Tampering with a jury is an offense. And, yes, I think there
    are plenty of corporations who would like never to have to
    appear before a jury again because they cannot influence that
    jury. It is against the law to do that. It is the last place
    where somebody who is getting rolled, who all institutions of
    Government are stacked against, can still have their last stand
    and find a hearing and get a neutral judge and, more
    importantly, a jury of their peers who cannot be tampered with
    about the decision before them to make that call.
        And I cannot see this choice that the Court has made as
    independent of all of those surrounding facts. I think it is
    implausible.
        The hearing will remain open----
        Senator Sessions. Mr. Chairman, could I just respond to say
    that I do not--I believe that Chief Justice Roberts and the six
    other Justices who ruled on this--I guess Roberts was on this
    opinion. Was he on this opinion? These are people who have seen
    thousands and hundreds of thousands of lawsuits work their way
    through the system, and they have a growing consensus that we
    have got a lot of frivolous lawsuits in the system, and that a
    person ought to at least be able to file a facially plausible
    complaint to get into court.
        This is not some agenda by some secret group out here. The
    Committee on Rules supports this agenda. Justice Cornyn--I will
    offer his statement for the record. He is a former Justice of
    the Texas Supreme Court. He supports it. So I think it is just
    a question of can we create a--has the Court improperly
    created--properly using the existing rules, interpreted
    erroneously to say that your complaint should have facial
    plausibility? And if we want to argue about that word, perhaps,
    but I think it is not against the law and the history of
    litigation in America. And, in fact, you go back 100 years, and
    you really had to plead with specificity to stay in court. It
    is a lot easier to be in court today than it used to be.
        Thank you.
        Senator Whitehouse. You are very welcome. The statement of
    Justice Cornyn, Senator Cornyn, Attorney General Cornyn, will
    be accepted into the record, as, without objection, will a
    number of other statements. My own is already in.
        [The prepared statement of Senator Cornyn appears as a
    submission for the record.]
        Senator Whitehouse. There is a coalition letter and
    statements from Hon. Louis Pollak; from Simon Lazarus of the
    Senior Citizens Law Center; from Alan Morrison at the George
    Washington University Law School; Michael Dorf at Cornell
    University Law School; Steve Crowley at the University of
    Michigan; Doug Richards at Cohen Millstein; Joseph Seiner, a
    professor at the University of South Carolina School of Law;
    David Shapiro, emeritus professor at Harvard Law School;
    Professor Spencer at Washington Lee Law School; Professor--I
    cannot read it--Subin at Northeastern University School of Law.
        In any event, they will all be accepted into the record
    without objection, as well the statement of Senator Feingold.
        [The statements appears as a submission for the record.]
        Senator Whitehouse. The record of the hearing will remain
    open for an additional week for any further statements that
    anybody wishes to add. This has been, I think, an instructive
    and lively hearing. All of the witnesses were extremely well
    prepared and thoughtful and argued their cases extremely well,
    and I was very impressed with the quality of the testimony. So
    I thank each of you for being here, and I will, without further
    ado, adjourn the hearing.
        [Whereupon, at 11:35 a.m., the Committee was adjourned.]
        [Questions and answers and submission for the record.]
        [Additional material is being retained in the Committee
    files, see Contents.]
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