Pleading and the Dilemmas of Modern American Procedure

By Burbank, Stephen B. | Judicature, November/December 2009 | Go to article overview

Pleading and the Dilemmas of Modern American Procedure


Burbank, Stephen B., Judicature


In 2007, the United States Supreme Court decided two major cases involving standards for assessing the adequacy of complaints to withstand motions to dismiss in federal civil actions, Tellabs, Inc., v. Makor Issues & Rights, Ltd.,1 and Bell Atlantic Corp. v. Twombly? The Court decided a diird such case, Ashcmflv. Iqbal? last Term. Although at one level concerned with technical requirements of pleading - the process by which, at the beginning of a case, parties disclose dieir claims and defenses to each other and the court - at another level, these cases raise important issues of public policy.

The degree of particularization and persuasiveness of a complaint's allegations that a system requires implicate the ability of putative plaintiffs to pursue adjudication of disputes on the merits (withstand a motion to dismiss), including their ability to discover relevant information from defendants in order to prove their allegations at trial (or to defeat a motion for sum mary judgment). They thus also implicate the ability of those who have been injured to use litigation in order to secure compensation, and the ability of a polity to use private litigation for diat purpose (i.e., in place of social insurance), and for die enforcement of social norms (i.e., in place of administrative enforcement).

From the perspective of those who are or may be sued, pleading requirements implicate the ease with which they can be haled into court and forced to incur direct and opportunity costs in defending against, or .setding, what may be meritless claims. Finally, from the (self-interested) perspective of the judiciary, pleading requirements implicate the volume of civil litigation and the types of litigation activity that filed cases exhibit, bodi of which affect the allocation of resources by court systems that in this country are chronically underfunded.

The broader policy implications of these cases make them a good vehicle for exploring some of the dilemmas of modem American procedure. To that end, I enumerate certain foundational assumptions and operating principles of the post- 1938 federal procedural system. I then show how diese diree cases illusUate costs of, and constraints imposed by, those foundational assumptions and operating principles, and, more generally, costs of the complex procedural system that we have created for the federal courts (and for many states that have followed the federal model) . I also suggest ways in which questions about (1) institutional responsibility for pleading standards, (2) the scope of application of such standards, and (3) their content, may be illuminated by recent work in cultural cognition and in political science.

The foundational assumptions I discuss are the notions that (1) the "general rules" required by the 1934 Rules Enabling Act1 should be not only uniformly applicable in all federal district courts but uniformly applicable in all types of cases (transsubstantive), (2) judicial discretion should be preferred to formalism in die creation of such "general rules," and (3) once made through "The Enabling Act Process," these "general rides" can only be changed through that process (or by legislation).

The operating principles I discuss are ( 1 ) the view that "general rules" should be not only transsubstantive but also, as it were, u^ansprocedural, and accordingly that different rules should not (usually) be written for cases having different procedural needs, and (2) the view that has translated the preference for judicial discretion into a preference for judicial power, resulting in the position diat legislative procedure is illegitimate.

Telkabs presented the Court with statutory ambiguities/' They resulted from a democratic process that is acknowledged as appropriate for the creation of policy on important social issues, such as those that are implicated when a system chooses pleading rules. Whether or not the choices underlying the provision considered in Tellabs axe wise, they are confined to cases brought under the Private Securities Litigation Reform Act of 1995 (PSLRA). …

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