The Senate Judiciary Committee holds a hearing Wednesday, Dec. 2, "Has the Supreme Court Limited Americans' Access to Courts?," which we take to be another opportunity to attack the Supreme Court decisions -- Ashcroft v. Iqbal and Bell Atlantic v. Twombly -- that limited notice pleadings by requiring specific factual allegations. On the witness list is Gregory Garre, who as U.S. Solicitor General argued before the U.S. Supreme Court in the Iqbal case on Dec. 10, 2008. (Transcript of oral arguments.) The American Lawyer spoke briefly with Garre, now at Latham & Watkins, in October:
Garre told us that, contrary to reports that called Iqbal a Supreme Court sleeper, "we perceived it to be a very important case all along," not just because the named defendants were former U.S. Attorney General John Ashcroft and former FBI Director Robert Mueller. Garre and his team understood that their case had the potential to establish whether the Court's ruling in Twombly applied only to antitrust cases or constituted a broader interpretation of the Federal Rules of Civil Procedure.
And because the Court's Iqbal opinion specifically addressed the old pleading standard established in a case called Conley, he said, "it was significant in clarifying standards in evaluating the sufficiency of pleading."
Also scheduled to testify at the Judiciary hearing are two critics of the Iqbal decision, John Payton of the NAACP Legal Defense Fund, and Stephen Burbank of the University of Pennsylvania Law School, noted for his writings on federal court rulemaking. (See Tony Mauro, National Law Journal, "Plaintiffs Groups Mount Effort to Undo 'Iqbal.'")
On the Judiciary Committee is Sen. Arlen Specter (D-PA), who has introduced S. 1504 to return the law to a pre-Iqbal standard on pleadings. Last week, Rep. Jerrold Nadler (D-NY) introduced H.R. 4115, the Open Access to Courts Act of 2009, hailed by the American Association for Justice. (See Mass Tort Defense blog, "Anti-Iqbal legislation update.") Earlier Point of Law posts here.