Open Access to Courts Act of 2009

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

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.