[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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