Pleading and the dilemmas of "general rules"

Wisconsin Law Review

Volumn 2009, Issue 2, 2009, Pages 535-564

  Burbank, Stephen B ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 84855872591     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (49)

1. See Geoffrey P. Miller, Pleading After Tellabs, 2009 WISC. L. REV. 507.
2. H.W. FOWLER, A DICTIONARY OF MODERN ENGLISH USAGE 130 (1926).
3. See Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. EMPIRICAL LEGAL STUD. 591, 623 (2004) (contending that neither the Seventh Amendment, as interpreted, nor the Supreme Court's 1985-86 summary-judgment trilogy provides much protection against "a court that, for whatever reason, has an expansive definition of chaff and hence is impatient with the pleas of a litigant to continue with an apparently weak case").
4. See Edson R. Sunderland, The Grant of Rulemaking Power to the Supreme Court of the United States, 32 MICH. L. REV. 1116, 1128 (1934);
5. see also Edson R. Sunderland, Character and Extent of the Rule-Making Power Granted U.S. Supreme Court and Methods of Effective Exercise, 21 A.B.A. J. 404, 405 (1935).
6. The Michigan Law Review article almost cost its author a seat on the Advisory Committee, and Charles Clark used it to advance his own interest in becoming the reporter. See Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1135-36 (1982) (discussing Sunderland's revisionist articles, the discussion at the Advisory Committee's first meeting, and Clark's maneuvering).
7. Act of June 1, 1872, ch. 255, §§ 5-6, 17 Stat. 196, 197. Sunderland could not attend this meeting. See Summary of Proceedings, supra note 26, at 1.
8. See Stephen B. Burbank, Of Rules and Discretion: The Supreme Court, Federal Rules and Common Law, 63 NOTRE DAME L. REV. 693, 713-14 n.140 (1988) [hereinafter Burbank, Of Rules and Discretion] ("The question whether uniformity necessarily entails trans-substantivity was not addressed probably because it was assumed.");
9. Stephen B. Burbank, The Transformation of American Civil Procedure: The Example of Rule 11, 137 U. PA. L. REV. 1925, 1935 (1989) [hereinafter Burbank, Transformation] (noting a lack of support for that position in legislative history of the Rules Enabling Act of 1934 or in the long history preceding its enactment);
10. Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909, 956-61 (1987);
11. Id. at 995-96 ("Such an integration of procedure and substance, however, would have required a degree of technicality, categorization, and definition that was at odds with the simplicity and uniformity themes the proponents had developed to propel their reform."). As Professor Bone maintains, the common view that procedure was independent of substantive law "implied that procedural rules could and should be general in nature and 'trans-substantive.'" Robert G. Bone, Making Effective Rules: The Need for Procedure Theory, 61 OKLA. L. REV. 319, 324 (2008).
12. See, e.g., Burbank, Of Rules and Discretion, supra note 30 (criticizing insistence on transsubstantivity);
13. Paul A. Carrington, Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Substantive Rules of Civil Procedure, 137 U. PA. L. REV. 2067 (1989) (defending transsubstantivity);
14. Robert M. Cover, For James Wm. Moore: Some Reflections on a Reading of the Federal Rules, 84 YALE L.J. 718, 731 (1975); Subrin, supra note 30. Recently, Professor Bone has asserted that "we must bury, once and for all, the thoroughly misguided idea that transsubstantivity is an independent value or ideal for the Federal Rules." Bone, supra note 30, at 333.
15. See, e.g., Geoffrey C. Hazard, Jr., Discovery Vices and Trans-Substantive Virtues in the Federal Rules of Civil Procedure, 137 U. PA. L. REV. 2237, 2244 (1989) ("This critique contemplates separate sets of rule[s] for civil rights cases, antitrust cases, routine automobile cases, and so on.").
16. See Burbank, Of Rules and Discretion, supra note 30, at 716-17 (noting the existence of Racketeer Influenced and Corrupt Organizations Act standing orders and asking, "[W]hy should we not have uniform rules that govern such cases, and those like them, in the respects in which they are deemed atypical, either because of their procedural requirements or the requirements of the substantive law?");
17. see also Stephen N. Subrin, Fudge Points and Thin Ice in Discovery Reform and the Case for Selective Substance-Specific Procedure, 46 FLA. L. REV. 27 (1994). Ats I have previously noted: No one I know is suggesting a return to the forms of action or a wholesale rejection of transsubstantive procedure. Some of us, however, are suggesting that it is time both to face facts (in particular the fact that uniformity and transsubstantivity rhetoric are a sham) and to find out the facts (in particular the facts about discretionary justice). A "veil of ignorance" may be an apt metaphor to describe federal rulemaking to date. It is not, I contend, an appropriate normative posture for the rulemakers of the future. Burbank, Transformation, supra note 30, at 1940-41; See Bone, supra note 30, at 333-34; id. at 334 ("[The o]ptimal level of generality should be determined not by reference to some trans-substantive ideal, but by balancing the costs and benefits of general versus specific rules.").
18. See, e.g., Stephen B. Burbank, Aggregation on the Couch: The Strategic Uses of Ambiguity and Hypocrisy, 106 COLUM. L. REV. 1924, 1927-31 (2006) (discussing the problem of inefficient overenforcement posed by small-claims class-action lawsuits under Federal Rule 23).
19. GEOFFREY C. HAZARD, JR., RESEARCH IN CIVIL PROCEDURE 9 (1963) ("[A] rule, to have cognitive and normative significance as such, must have an important degree of determinative content to the group to whom it is addressed.").
20. See Burbank, Of Rules and Discretion, supra note 30, at 715 ("Federal Rules that avoid policy choices and that in essence chart ad hoc decision-making by trial judges are uniform and hence trans-substantive in only the most trivial sense."); Burbank, Transformation, supra note 30, at 1940-41 ("[U]niformity and trans-substantivity rhetoric are a sham.").
21. See Subrin, supra note 30, passim; see also Burbank, supra note 23, at 597-98 & n.20 (discussing the ties of the two chief architects of the Federal Rules to the Progressive and Legal Realism movements). For another view of "the Progressive drive for procedural uniformity," see Kenneth W. Graham, Jr., The Persistence of Progressive Proceduralism, 61 TEX. L. REV. 929 (1983)
22. (reviewing JULIUS LEVINE, DISCOVERY: A COMPARISON BETWEEN ENGLISH AND AMERICAN CIVIL DISCOVERY LAW WITH REFORM PROPOSALS (1982)). Professor Graham attributes its embrace by academics to [their] unconscious understanding that lack of uniformity is a threat to the claim that procedure is a value-free science. If there is more than one scientifically valid way to litigate, then the choice of one or the other procedural system must be based on values; in other words, the selection of one mode of proceeding over another is a political choice. Id. at 945.
23. See JAMES S. KAKALIK ET AL., RAND INST. FOR CIVIL JUSTICE, JUST, SPEEDY, AND INEXPENSIVE?: AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT 11-13 (1996); Id. at 12 ("The consequence was that almost all general civil cases to which CJRA [Civil Justice Reform Act] procedural principles might be relevant were placed in the standard track, if any tracking assignment was made.").
24. See GREGORY P. JOSEPH, FEDERAL LITIGATION - WHERE DID IT GO OFF TRACK? (2008), available at http://www.josephnyc.com/articles/viewarticle.php?53 ("Twenty-five years ago, on January 1, 1983, it cost parties roughly the same to litigate in state and federal court. Plaintiffs chose federal court sometimes for expansive discovery or to get a good judge, even though state court was an available alternative and additur impermissible in federal court. Today, plaintiffs with non-federal causes of action flee federal court, and those with federal claims scour the books for state law analogues.");
25. see also Stephen B. Burbank, The Complexity of Modern American Civil Litigation: Curse or Cure?, 91 JUDICATURE 163 (2008); infra text accompanying notes 121-23.
26. See EDWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958, at 256 (1992) ("[T]he Justices generally if implicitly believed that they should maintain federal jurisdiction over issues and interests that they regarded as having national importance.");
27. Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. PA. L. REV. 1439, 1533 (2008) (suggesting that the supposed need to deal with overlapping class-action lawsuits "may provide cover to those among CAFA's [Class Action Fairness Act] supporters, in and out of Congress, who do not wish to be associated with the notion that the business of the federal courts is business").
28. See Stephen B. Burbank, Procedure, Politics and Power: The Role of Congress, 79 NOTRE DAME L. REV. 1677, 1702, 1729, 1731 (2004) (discussing the judiciary's opposition to various congressional bills containing procedural provisions, including bills that led to the PSLRA).
29. See Stephen B. Burbank, The Costs of Complexity, 85 MICH. L. REV. 1463, 1475 (1987)
30. (reviewing RICHARD L. MARCUS & EDWARD F. SHERMAN, COMPLEX LITIGATION (1985)).
31. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002); Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993) ("Perhaps if Rules 8 and 9 were rewritten today, claims against municipalities under § 1983 might be subjected to the added specificity requirement of Rule 9(b). But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation."). But see Jones v. Bock, 549 U.S. 199, 212 (2007) ("In a series of recent cases, we have explained that courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns.") "Generally"? The Court's unanimous opinion in this case, rejecting all of the three procedural roadblocks that the United States Court of Appeals for the Sixth Circuit had created to thwart prisoner litigation, including a heightened pleading requirement, may here anticipate Twombly as a departure from "the usual practice." Jones was argued on October 30, 2006. Id. at 199. Twombly was argued on November 27, 2006. 127 S. Ct. 1955, 1955 (2007). Perhaps Jones was designed to anticipate and calm fears engendered by Twombly, which may explain why it so thoroughly confounds the attitudinal model of judicial behavior. See Stephen B. Burbank, The Greening of Harry Blackmun, 101 NW. U. L. REV. COLLOQUY 137, 142 (2007) ("I doubt that either an attitudinal or a strategic model of judicial behavior can explain a decision like Jones v. Bock."); see also infra note 88 (discussing Erickson v. Pardus, 127 S. Ct. 2197 (2007)).
32. See, e.g., Iqbal, 490 F.3d at 157 n.7 ("For example, it would be cavalier to believe that the Court's rejection of the 'no set of facts' language from Conley, which has been cited by federal courts at least 10,000 times in a wide variety of contexts (according to a Westlaw search), applies only to section 1 antitrust claims."). For an excellent analysis of Twombly from this perspective, see A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431 (2008).
33. Fxor a similar interpretation of Twombly, see Robert G. Bone, Twombly, Pleading Rules and the Regulation of Court Access, 94 IOWA L. REV. (forthcoming 2009), available at http://www.bu.edu/law/faculty/scholarship/workingpapers/ 2008.html.
34. See 28 U.S.C. § 2072(b) (2006) ("All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect."). For the origins and purposes of the supersession clause, see Burbank, supra note 27, at 1051 n.156. For more recent developments involving it, including the unsuccessful attempt to delete it from the Enabling Act as part of the 1988 amendmentsxt, see Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 1012, 1036-46.
35. See supra text accompanying note 80. I share the Second Circuit's view that the allegations that Ashcroft and Mueller were personally involved in the adoption and/or approval of the policies and directives challenged in Iqbal tell a story that is plausible (not unreasonable). See supra text accompanying note 90. Note that the Iqbal complaint does not attempt to hold those individuals responsible for the quotidian abuses during confinement that it alleges in claims against lower-level officials and employees. See Professors' Amicus Brief, supra note 92, at 15 ("Thus, while the complaint does charge several individuals with ad hoc violations of the plaintiff's rights⋯ neither Ashcroft nor Mueller is named in any of these fact-specific counts.").
36. If the Court were to do so, any such requirement might be applicable in a state-court action involving the same defense of official immunity, a scenario that is probably only theoretically possible given the availability of removal. See supra text accompanying notes 93-94. Cf. Brown v. W. Ry., 338 U.S. 294 (1949) (holding a strict Georgia pleading rule was inapplicable in a Federal Employer Liability Act case in Georgia state court). Unfortunately, Twombly has prompted the proliferation of nonsense about the circumstances when federal law displaces state law in state court under the pernicious rubric of "reverse" or "converse" Erie. See Z.W. Julius Chen, Note, Following the Leader: Twombly, Pleading Standards, and Procedural Uniformity, 108 COLUM. L. REV. 1431, 1443-53 (2008). Because the only sources of authority for such displacement are the federal constitutional and statutory bases of substantive federal (including common) law, the transsubstantive Federal Rules and cases interpreting them are irrelevant (except perhaps as a source of inspiration for a substance-specific rule of federal common law). See Burbank, supra note 93, at 1557-58;
37. Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 CORNELL L. REV. 733, 805-10 (1986).
38. Iqbal v. Hasty, 490 F.3d 143, 158 (2d Cir. 2007), cert. granted sub nom. Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008). It is useful in this regard to recall the links between the Progressives' project of regulatory " legibility" and the impulses that led to broad discovery under the Federal Rules. See Burbank, supra note 23, at 597-98 n.20 (discussing Edson Sunderland, a Progressive who was the chief architect of the discovery rules); Ken I. Kersch, The Reconstruction of Constitutional Privacy Rights and the New American State, in 16 STUDIES IN AMERICAN POLITICAL DEVELOPMENT 61 (2002).
39. See generally ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW (2001).
40. See, e.g., CHRISTOPHER HODGES, THE REFORM OF CLASS AND REPRESENTATIVE ACTIONS IN EUROPEAN LEGAL SYSTEMS: A NEW FRAMEWORK FOR COLLECTIVE REDRESS IN EUROPE (2008);
41. Stephen B. Burbank, The Roles of Litigation, 80 WASH. U. L.Q. 705, 710-11 (2002) (describing the United Kingdom's change of position regarding "litigation on spec," as a direct result of cuts in the legal aid budget).
42. This word denotes a poem in which the poet retracts something said in a previous poem or, more generally, any formal retraction. See AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 944 (3d ed. 1973). Its allure in, and aptness given, our recent political circumstances should be apparent.
43. Note the recent exception in amendments to Federal Rule of Evidence 502, proposed as legislation by the judiciary and enacted by Congress. See Pub. L. No. 110-322, 122 Stat. 3537 (2008); S. REP. NO. 110-264, at 4 (2008), available at http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=110-cong- reports&docid=f:sr264.110.pdf ("On December 11, 2007, Chairman Leahy introduced S. 2450, incorporating the language proposed by the Judicial Conference's Advisory Committee."). Because, however, the amendments govern attorney-client privilege, the judiciary had no choice by reason of the Enabling Act's requirement that any "rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress." 28 U.S.C. § 2074(b) (2006).
44. See JOSEPH, supra note 41; Maurice Rosenberg, The Federal Rules After Half a Century, 36 ME. L. REV. 243, 249 (1984). I am here taking a point made by Professor Hadfield one step further, or perhaps one step back. She has argued that through a market allocation of lawyers that favors corporate clients over individual clients, the legal system establishes that governing the economy is the principal role of the justice system.
45. See Gillian K. Hadfield, The Price of Law: How the Market for Lawyers Distorts the Justice System, 98 MICH. L. REV. 953, 1000 (2000). My point is that, in addition to favoring jurisdictional rules that have privileged business throughout most of our history, see supra text accompanying notes 41-42, the federal judiciary has created a procedural system so complex that most litigants who can satisfy federal jurisdictional requirements cannot afford to litigate in federal court.
46. See John B. Oakley, A Fresh Look at the Federal Rules in State Courts, 3 NEV. L.J. 354 (2002) (updating a 1986 study of the extent of state adoption of the Federal Rules). The borrowing is especially problematic to the extent that state-court judges are under greater docket and resource pressures than their federal colleagues, depriving them of the ability to use the tools in the Federal Rules for managing litigation.
47. See Phyllis Tropper Baumann et al., Substance in the Shadow of Procedure: The Integration of Substantive and Procedural Law in Title VII Cases, 33 B.C. L. REV. 211 (1992);
48. Stephen B. Burbank, Procedure, Politics and Power, 52 J. LEGAL EDUC. 342, 344 (2002) ("For, when one knows that a rule has a statistically significant differential impact on a class of litigants or in a particular type of case, the veil is lifted, the myth of neutrality as to litigant power is exploded, and the question of lawmaking power to address the situation is unavoidable. It may not be a coincidence, therefore, that the heightened attention to questions of rulemaking power in the past ten years has come during a period of unprecedented attention to empirical investigation of the real-world effects of rules by the rule makers."); supra note 33 (discussing the inappropriateness of a "veil of ignorance" as a normative posture for rule makers).
49. See Stephen B. Burbank, Judicial Independence, Judicial Accountability, and Interbranch Relations, 95 GEO. L.J. 909, 910 (2007) (discussing attacks on courts that implement strategies reflecting a theory of judicial agency and that are designed "to create and sustain an impression of judges that makes courts fodder for electoral politics").