[Congressional Record Volume 156, Number 173 (Wednesday, December 22, 2010)]
[Senate]
[Pages S11037-S11038]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. SPECTER:
  S. 4054. A bill to restore the law governing pleading and pleading 
motions that existed before the decisions of the Supreme Court of the 
United States in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and 
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); to the Committee on the 
Judiciary.
  Mr. SPECTER. Mr. President, last year I introduced the Notice 
Pleading Restoration Act of 2009, H.R. 1504. As I explained in my 
accompanying floor statement, my objective was to restore the pleading 
standard that had governed federal civil practice if not since the 
Federal Rules of Procedure originally took effect in 1938, then at very 
least since the Supreme Court decided Conley v. Gibson in 1957. Several 
months earlier the Supreme Court had issued the second of two 
controversial decisions--Bell Atlantic Corp. v. Twombly, 2007, and 
Iqbal v. Ashcroft, 2009--in which it had replaced that standard with a 
heightened pleading standard that, not least among its several flaws, 
was plainly inconsistent with the original meaning of the Federal 
Rules. My concern was not only that the Court had closed the courthouse 
doors to plaintiffs with meritorious claims and limited the private 
enforcement of public law, but also that, in yet another of its recent 
incursions on Congress's lawmaking powers, it had end-run the process 
for amending the Rules established by the Rules Enabling Act of 1934. 
That process includes, as its last step, Congressional approval of any 
amendment.
  While there was widespread agreement among the country's leading 
academic proceduralists on the need for legislation overruling the 
Court's decisions, there was much less agreement among them as to what, 
exactly, the

[[Page S11038]]

legislation should say. I chose in S. 1504 to incorporate the pleading 
standard set forth in Conley. A companion House bill introduced after 
S. 1504, H.R. 4115, took a somewhat different approach. Various 
commentators proposed yet other approaches.
  After a hearing on the legislation before the Judiciary Committee, I 
consulted through my general counsel, Matthew L. Wiener, with leading 
academic proceduralists and several distinguished practicing lawyers 
with an eye toward offering a possible substitute amendment. The 
conclusion I soon drew was that Congress must indeed overrule Twombly 
and Iqbal but without (as the Court had done) prescribing a pleading 
standard outside the rulemaking process established by the Enabling 
Act. The best way to do so, I concluded, was simply to draft 
legislation requiring adherence to the Supreme Court's pre-Twombly 
decisions interpreting the applicable federal rules unless and until 
they are amended in accordance with the Enabling Act. The bill I have 
introduced today, the Notice Pleading Restoration Act of 2010, takes 
just that approach. I urge the next Congress to take up this bill when 
it convenes in January.
  For their wise counsel in helping me work through the issues 
presented by the legislation, I would like to acknowledge and thank the 
following lawyers, most of them professors of civil procedure: Allen D. 
Black, a partner at Fine, Kaplan & Black, R.P.C.; John S. Beckerman, 
Professor of Law, Rutgers University School of Law-Camden; Stephen B. 
Burbank, the David Berger Professor for the Administration of Justice 
at the University of Pennsylvania Law School; Sean Carter, a 
shareholder of Cozen O'Connor; Jonathan W. Cuneo, a partner at Cuneo 
Gilbert & LaDuca LLP and a former counsel to the House Judiciary 
Committee; Michael C. Dorf, the Robert S. Stevens Professor of Law at 
Cornell University School of Law; William N. Eskridge, Jr., the John A. 
Garver Professor of Jurisprudence at Yale Law School; Suzette M. 
Malveaux, Associate Professor of Law, Columbus School of Law, Catholic 
University of America; Arthur R. Miller, University Professor at the 
New York University School of Law; John Payton, President and Director-
Counsel, NAACP Legal Defense Fund; Alexander Reinert, an Associate 
Professor of Law at the Benjamin Cardozo School of Law; David L. 
Shapiro, the William Nelson Cromwell Professor of Law, Emeritus, at 
Harvard Law School; Stephen N. Subrin, Professor of Law, Northeastern 
University School of Law; and Tobias Barrington Wolff, a Professor of 
Law at the University of Pennsylvania Law School.
  Professor Burbank deserves special acknowledgment for first 
suggesting and explaining the general approach underlying my bill 
during his testimony before the Senate Judiciary Committee on December 
2, 2009, and special thanks for lending my staff so much of his 
valuable time during the last year-and-a-half. I commend his 
unimpeachable testimony to my colleagues and their staffs.
  Not all of these lawyers, I must emphasize in closing, endorse my 
legislation, and none of them of course is responsible for its 
particulars. Most of them submitted prepared statements for the record 
of the December 2 hearing, and their individual views can be found 
there.

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