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Former Solicitor General Garre's testimony on Iqbal, Twombly

Gregory Garre, who as U.S. Solicitor General argued the Ashcroft v. Iqbal case before the U.S. Supreme Court (transcript), testified Wednesday at the Senate Judiciary Commitee's hearing, "Has the Supreme Court Limited Americans' Access to Courts?" His 41-page prepared statement is an excellent discussion of pleadings standards and the implications of the Iqbal and Twombly cases.

Also, as a former government official himself, Garre seems especially concerned about the effect of proposed legislation -- such as Sen. Arlen Specter's S. 1504 -- of the use of permissive pleadings to undermine or evade qualified immunity. His conclusion:

There is no reason for Congress to override the time-honored judicial rulemaking process when it comes to evaluating or addressing the Twombly and Iqbal decisions. Indeed, the threshold nature of pleading standards and the interaction between Rule 8 of the Federal Rules of Civil Procedure and other rules (e.g., Rule 12(b)(6) and Rule 15) make this an issue that is particularly well-suited for the expertise and deliberative attention of the Judicial Conference of the United States in carrying out its statutory duty to engage in "a continuous study of the operation and effect of the general rules of practice and procedure." 28 U.S.C. ยง 331.

Also testifying were two critics of the Iqbal decision, John Payton of the NAACP Legal Defense Fund (statement), and Stephen Burbank of the University of Pennsylvania Law School. Chairman Patrick Leahy and Sen. Russell Feingold also had prepared statements (here and here, respectively).

Earlier Point of Law posts here.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.