This Paper comments on Professor Geoffrey Miller's paper on
pleading under Tellabs, Inc. v. Makor Issues & Rights, Ltd. and goes on
(1) to use Tellabs, Bell Atlantic Corp. v. Twombly, and Iqbal v. Hasty (in
which the Supreme Court of the United States has granted review) to
illustrate the limits of, and costs created by, certain foundational
assumptions and operating principles that are associated with the Rules
Enabling Act's requirement of "general rules"; and (2), more generally, to
illustrate the costs of the complex procedural system that we have created.
Thus, for instance, the argument that the standards emerging from
Twombly should be confined to antitrust conspiracy cases confronts the
foundational assumptions that the Federal Rules of Civil Procedure are
transsubstantive and that they cannot be amended by judicial interpretation.
Similarly, in Iqbal, the government presumably denies that it is calling for
the imposition of a heightened fact-pleading requirement in cases involving
high government officials entitled to an immunity defense because the Court
seems to have made it impossible for the judiciary openly to impose such a
requirement other than through "The Enabling Act Process." The Court
may, however, take a different view of the appropriate contextual
plausibility judgment than did the lower court in Iqbal. If so, however, the
Court would thereby confirm the view that Twombly is an invitation to the
lower courts to make ad hoc decisions reflecting buried policy choices. I
therefore argue that, if the Court is persuaded that the changes already
made to pleading jurisprudence are insufficient to accommodate the needs
of the immunity defense, it should forthrightly require fact pleading as a
matter of substantive federal common law.
Description
The Continuing Evolution of Securities Class Actions Symposium
