S. HRG. 111–530 

HAS THE SUPREME COURT LIMITED AMERICANS’ 

ACCESS TO COURTS? 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

DECEMBER 2, 2009 

Serial No. J–111–64 

Printed for the use of the Committee on the Judiciary 

( 

HAS THE SUPREME COURT LIMITED AMERICANS’ ACCESS TO COURTS? 

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56–719 PDF 2010

S. HRG. 111–530 

HAS THE SUPREME COURT LIMITED AMERICANS’ 

ACCESS TO COURTS? 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

DECEMBER 2, 2009 

Serial No. J–111–64 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 136 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wiscoonsin, 

prepared statement .............................................................................................. 172 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared statement . 221 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 223 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 14 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island, 

prepared statement .............................................................................................. 316 

WITNESSES 

Burbank, Stephen B., David Berger Professor for the Administration of Justice, University of Pennsylvania Law School, Philadelphia, Pennsylvania ..... 7 

Garre, Gregory G., Partner, Latham & Watkins, LLP, Washington, D.C., 

and former Solicitor General of the United States ............................................ 6 

Payton, John, President and Director-Counsel, NAACP Legal Defense and 

Educational Fund, Inc., Washington, D.C ......................................................... 4 

QUESTIONS AND ANSWERS 

Responses of Stephen B. Burbank to questions submitted by Senators Coburn, 

Specter .................................................................................................................. 26 

Responses of Gregory G. Garre to questions submitted by Senators Session 

and Coburn ........................................................................................................... 50 

Responses of John Payton to questions submitted by Senators Franken and 

Coburn ................................................................................................................... 69 

SUBMISSIONS FOR THE RECORD 

AALS, University of Denver, Institute for the Advancement of the American 

Legal System, Denver, Colorado, statement ...................................................... 75 

Alliance for Justice; American Antitrust Institute; American Association for 

Justice; American Civil Liberties Union; Brennan Center for Justice at 

NYU School of Law; Center for Justice & Democracy; Christian Trial lawyer’s Association; Committee to Support the Antitrust Laws; Community 

Catalyst; Consumer Federation of America; Consumers Union; Earthjustice; 

Environment America; Essential Information; The Impact Fund; La Raza 

Centro Legal; Lawyers’ Committee for Civil Rights Under Law; Leadership 

Conference on Civil Rights; Mexican American Legal Defense and Educational Fund; NAACP Legal Defense and Educational Fund; National Association of Consumer Advocates; National Association of Shareholder and 

Consumer Attorneys; National Consumer Law Center; National Consumers 

League; National Council of La Raza; National Crime Victims Bar Association; National Employment Lawyers Association; National Senior Citizens 

Law Center; National Whistleblowers Center; National Women’s Law Center; Neighborhood Economic Development Advocacy Project; Public Citizen; 

Sierra Club; Southern Poverty Law Center; Taxpayers Against Fraud; U.S. 

Public Interest Research Group, October 26, 2009, joint letter ....................... 78 

Beckerman, John S., Associae Dean, Rutgers University School of Law, Camden, New Jersey, statement ................................................................................ 81 

Page

IV 

Burbank, Stephen B., David Berger Professor for the Administration of Justice, University of Pennsylvania Law School, Philadelphia, Pennsylvania, 

statement .............................................................................................................. 84 

Carter, Sean P., Cozen O’Connor, a Professional Corporation, Philadelphia, 

Pennsylvania, letter and attachments ................................................................ 114 

Croley, Steven P., Professor of Law, University of Michigan Law School, 

Ann Arbor, Michigan, statement ........................................................................ 138 

Dorf, Michael C., Professor of Law, Cornell University Law School, Ithaca, 

New York, letter ................................................................................................... 151 

Eisenberg, Theodore, Henry Allen Mark Professor of Law & Adjunct Professor 

of Statistical Sciences, Cornell University, statement ...................................... 153 

Garre, Gregory G., Partner, Latham & Watkins, LLP, Washington, DC, and 

former Solicitor General of the United States, statement ................................ 174 

Hausfeld, Michael D., Chairman, Hausfeld LLP, Washington, DC, statement . 215 

Mexican American Legal Defense and Educational Fund, Claudine Karasik, 

Legislative Staff Attorney, Washington, DC, statement ................................... 225 

Malveaux, Suzette M., Associate Professor of Law, Columbus School of Law, 

Catholic University of America, Washington, DC, statement .......................... 227 

Miller, Arthur R., Professor, New York Univerity, School of Law, New York, 

New York, statement ........................................................................................... 233 

Morrison, Alan B., George Washington University, University Law School, 

Washington, DC, statement ................................................................................ 241 

National Senior Citizens Law, Simon Lazarus, Public Policy Counsel, Washington, DC, letter ................................................................................................. 249 

Payton, John, President and Director-Counsel, NAACP Legal Defense and 

Educational Fund, Inc., Washington, DC, statements ...................................... 253 

Pollak, Louis H., University of Pennsylvania Law Review, Philadelphia, Pennsylvania, statement .............................................................................................. 270 

Richards, J. Douglas, Cohen Milstein Sellers & Toll PLLC, New York, New 

York, statement .................................................................................................... 273 

Seiner, Joseph A., Professor, University of South Carolina School of Law, 

Columbia, South Carolina, statement ................................................................ 279 

Shapiro, David L., William Nelson Cromwell Professor of Law, Emeritus 

Harvard Law School, Cambridge, Massachusetts, memo ................................. 284 

Spencer, A. Benjamin, Professor, Washington & Lee Univeristy School of 

Law, Lexington, Virginia, letter and attachment .............................................. 285 

Subrin, Stephen N., Professor, Northeastern University School of Law, Boston, Massachusetts, statement ............................................................................ 305 

Thomas, Suja A., Professor, University of Illinois College of Law, Champaign, 

Illinois, statement ................................................................................................ 311 

Wolff, Tobias Barrington, Professor of Law, University of Pennsylvania Law 

School, Philadelphia, PA, statement .................................................................. 317 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government or other criteria determind 

by the Committee, list: 

Kuperman, Andrea, Rules Law Clerk to Judge Lee H. Rosenthal, Chair of 

the Judicial Conference Committee, memorandum 

(1) 

HAS THE SUPREME COURT LIMITED 

AMERICANS’ ACCESS TO COURTS? 

WEDNESDAY, DECEMBER 2, 2009, 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:07 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Whitehouse, Specter, Franken, and 

Sessions. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Senator Sessions, who is virtually always here, is tied up in the Armed Services Committee 

meeting on Afghanistan, and other members will be going back and 

forth to that Committee. We can well understand why. It is an extraordinarily important issue. Those of us who met with the President yesterday before he left for West Point understand the significance. Whether you are for or against the position he has taken, 

it is something that every member of the Senate and the House 

will have to be looking at. 

For this morning, we are going to examine the impact of two recent Supreme Court decisions and what they have done to Americans’ access to the Nation’s court system. I am doing this because 

I have been worried about the increasingly activist bent of the Supreme Court, and it has probably become in many ways the most 

activist Supreme Court certainly since my days in law school, and 

I am worried about the ignoring of both precedent and of Congressional legislation. 

A few years ago, a slim majority of the Supreme Court undercut 

the landmark precedent of Brown v. Board of Education and its 

guarantee of equal justice. Now, we all know—and I remember it 

very well—that at the time Earl Warren spent a couple years to 

get a unanimous opinion in Brown v. Board of Education because 

there was going to be such a revolutionary but such a long overdue 

decision in this country. But a slim majority undercut it, and at 

that time Justice Breyer observed that ‘‘it is not often in the law, 

that so few, have so quickly, changed so much.’’ I agree with Justice Breyer. And his comment reflects the power that a mere five 

Justices on the Supreme Court can have in our democracy. Unlike 

the unanimous decision in Brown v. Board of Education, their actions need not be unanimous. They do not need consensus. In the 

2 

very year a Justice is confirmed, he or she can be the deciding vote 

to overturn precedent and settled law. 

This is now the fifth hearing in 18 months held to highlight cases 

where literally five Justices—the slimmest majority—have changed 

the legal landscape by overturning precedent and undermining legislation passed by Republicans and Democrats together in Congress. Today’s hearing is yet another reminder about how just one 

vote on the Supreme Court can impact the rights and liberties of 

millions of Americans. 

Today, we focus on how a thin majority of the Supreme Court 

has changed pleading standards. The issue may sound abstract, 

but certainly not to those who study the Court. As we understand 

it, the ability of Americans to seek redress in their court system 

is fundamental. In a pair of divided decisions, the Court restricted 

a petitioner’s ability to bring suit against those accused of wrongdoing. The Court essentially made it more difficult for victims to 

proceed in litigation before they get to uncover evidence in discovery. I think it is just the latest example of judicial activism. 

For more than 50 years, judges around the Nation enforced longstanding precedent to open courthouse doors for all Americans. In 

the 1957 decision of Conley v. Gibson, the Supreme Court held that 

a plaintiff’s complaint will not be dismissed if it sets out a short 

and plain statement of the claim, giving ‘‘the defendant fair notice 

of what the claim is and the grounds upon which it rests.’’ This 

precedent reflected the intent behind the Federal Rules of Civil 

Procedure, adopted by Congress before I was born, to set pleading 

standards to allow litigants their day in court. Lawyers call this 

‘‘notice pleading.’’ The lawyers distinguish it from specific fact 

pleading. The underlying intent has been to allow people their day 

in court and not to require them to know everything or have all 

the evidence they will need to prove their claim at the outset. Much 

of that evidence may be in the hands of the defendant and the defendant’s wrongdoing, after all. Allowing the case to begin with a 

good-faith claim permits the parties to engage in evidence gathering. Of course, to prevail, then the party needs to establish a 

claim by a preponderance of the evidence so that by the end of the 

case the claim of wrongdoing will be fairly tested. Any one of us 

who ever practiced law knows that. You file that, you have discovery. You go through the usual things, and then the case may expand. You may be amending your pleading. You may add additional counts. Every lawyer—every lawyer, plaintiff or defendant— 

knows this. 

But in two cases—Iqbal and Twombly—the Supreme Court abandoned the 50-year-old precedent established in Conley—a precedent 

that every lawyer has always followed, certainly that I did when 

I was in private practice. Now the Court requires that prior to discovery, a judge must assess the ‘‘plausibility’’ of the facts of an allegation. In his dissent, Justice Stevens called Twombly a ‘‘dramatic 

departure from settled procedural law’’ and ‘‘a stark break from 

precedent.’’ He predicted that this decision would ‘‘rewrite the Nation’s civil procedure textbooks’’ because it ‘‘marks a fundamental— 

and unjustified—change in the character of pretrial practice.’’ Justice Souter, the author of the Twombly decision, dissented in Iqbal 

because he believed the five-Justice majority created a new rule 

3 

that was ‘‘unfair’’ to plaintiffs because it denied them a ‘‘fair chance 

to be heard.’’ 

But these activist decisions do more than ignore precedent; they 

also pose additional burdens on litigants seeking to remedy wrongdoing. And as a result of this judge-made law, litigants could be denied access to the facts necessary to prove wrongdoing. As this 

Committee learned last year from the testimony of Lilly Ledbetter, 

employees are often at a disadvantage because they do not have access to the evidence to prove their employer’s illegitimate conduct, 

and if the employer is involved in illegitimate conduct, usually they 

do not broadcast that fact and you have to discover it otherwise. 

In fact, I believe that her civil rights claim would not have survived 

a motion to dismiss under the new standard. Our justice system 

cannot ignore the reality that a defendant often holds the keys to 

critical information which a litigant needs to prove unlawful conduct. 

By making the initial pleading standard so much tougher for 

plaintiffs to reach, the conservative majority on the Supreme Court 

is making it more difficult to hold perpetrators of wrongdoing accountable. I believe this will result in wrongdoers avoiding accountability under our laws. 

Of course, wealthy corporate defendants and powerful Government defendants of either a Democratic or Republican administration would prefer never to be sued and never to be held accountable. These new judge-made rules will result in prematurely closing the courthouse doors on ordinary Americans seeking the meaningful day in court that our justice system has provided. 

As we will hear from our witnesses today on the impact of these 

two cases, we will hear that it has been immediate and expansive. 

According to the National Law Journal, 4 months after Iqbal, more 

than 1,600 cases before lower Federal courts have cited this. This 

precedent has the potential to deny justice to thousands of current 

and future litigants who seek to root out corporate and governmental wrongdoing. 

We all know that a right without a remedy is no right at all. 

That is what is at stake here. And I fear that these decisions are 

not isolated rulings but, rather, part of a larger agenda by conservative judicial activists to undermine Americans’ fundamental 

rights. The Seventh Amendment to the Constitution guarantees the 

right of every American to a jury trial. That guarantee is undermined if the rules for getting into court are so restrictive that they 

end up closing the courthouse door. 

I thank Senator Whitehouse, the Chairman of the Subcommittee 

on Administrative Oversight and the Courts, for working to hold 

this hearing. And I know that he, when I have to leave, is going 

to take over chairing it and rely on his own experience in that. 

Did you want to add anything before we go to the witnesses? 

Feel free. 

Senator WHITEHOUSE. I have a statement, but if we could just 

move along. 

Chairman LEAHY. Then we will call as the first witness—and I 

thank Senator Specter and Senator Franken also for being here. 

Senator Specter especially has spoken out numerous times about 

the courts undermining what has been legislative intent. 

4 

John Payton is the Director-Counsel and President of the 

NAACP Legal Defense Fund. He is the sixth person to lead LDF 

in its 67-year history. He continues the legacy of a historic organization started by Thurgood Marshall. He was previously a partner 

in the Wilmer Hale law firm, and he received his law degree from 

Harvard University. Mr. Payton is not a stranger to this Committee at all. 

Please go ahead, sir. 

STATEMENT OF JOHN PAYTON, PRESIDENT AND DIRECTORCOUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., WASHINGTON, D.C. 

Mr. PAYTON. Good morning, and thank you for inviting me to testify at this really very important hearing. I agree with Chairman 

Leahy about how important this is. 

The brief answer to the question posed by the title of the hearing, ‘‘Has the Supreme Court limited Americans’ access to courts?,’’ 

is ‘‘Yes.’’ I have submitted written testimony, and I am not going 

to go over all of that written testimony. But I thought in my oral 

remarks I would try to put this in context to actually explain how 

I see what the stakes are here, what is at issue here. 

The Legal Defense Fund is the country’s first civil rights law 

firm. I believe we remain the country’s finest civil rights law firm. 

We were founded in 1940—which is just as the Federal Rules went 

into effect. We have used those rules to great effect. Relying on the 

Constitution and the laws and those rules, we brought civil rights 

and human rights cases on behalf of African Americans, Hispanic 

Americans, Asian Americans, white Americans, men and women, 

straight and gay. We have helped create an anti-discrimination 

principle that applies to employment, public accommodations, education, housing, union representation, police treatment, voting, and 

economic justice. 

The ability to enforce rights created power in the people who 

were the victims of discrimination. That is, rights create power. 

When an aggrieved person—an African American who is denied the 

low mortgage rate that is offered to a white person, for example— 

when an aggrieved person can assert rights in court, it empowers 

that individual. Those rights can be asserted against the Government, from the local to the Federal. Those rights can also be asserted against private parties, from individuals to a large corporation. 

But as the Chairman said, for those rights to be real, they must 

be enforceable. That is, if there is a right without a remedy, it is 

not a right. For those rights to be real, they must be enforceable, 

and that enforceability requires access to courts. One of the critical 

elements of our system of justice is access to courts. If that access 

is curtailed, the power of victims of discrimination to redress 

wrongdoing is also curtailed. 

This fundamental principle of open access is now threatened in 

very real terms by two recent Supreme Court decisions, Twombly 

and Iqbal. Although Iqbal was decided just this year, these decisions have already resulted in the results that Chairman Leahy described in the National Law Journal article. We are already seeing 

people denied access to courts, and when they are denied access to 

5 

courts, their rights are being curtailed. By suddenly imposing new 

pleading requirements that are far more stringent than the longstanding standard set forth in the Federal Rules, the Supreme 

Court has erected a significant barrier that operates to deny victims of discrimination their day in court. This is nothing short of 

an assault on some of our most cherished democratic principles. 

As District Judge Jack Weinstein recently commented about the 

detrimental impact of this heightened pleading standard, ‘‘[A] true 

‘government for the people’ should ensure that ‘the people’ are able 

to freely access the courts and have a real opportunity to present 

their cases.’’ 

Civil rights always matter. Human rights always matter. But 

they matter especially right now. The recession may be over for 

Wall Street, but for increasing numbers of people who have lost 

their jobs, it is only getting worse. We have double-digit unemployment overall. 

The Washington Post reported last week that the unemployment 

rate for African-Americans is 34.5 percent. Those are Depression 

levels. Those are Depression-era levels. 

Discrimination thrives in this environment. Everybody knows 

that. Not having a job often means people feel as though they are 

not really a part of their community. They lose their dignity. Not 

having a job because of racial discrimination makes people feel like 

they are not part of the larger society. Having enforceable rights 

is critical to maintaining our social cohesion and inclusiveness. 

We have worked very hard, the Legal Defense Fund, and I would 

say the country as a whole, to erect the set of laws that actually 

bring us together and allow us all to have rights. 

The Legal Defense Fund believes that Congress should act immediately to prevent the Supreme Court’s ruling in Iqbal and 

Twombly from further undermining access to courts for victims of 

discrimination. 

I want to thank Senator Specter and this Committee for moving 

so urgently in trying to address this issue, and I look forward to 

working with Senator Specter and with the Committee on this 

issue. Given the important policy objectives behind our Nation’s 

civil rights laws and the hard-fought battles to secure their passage, Congress has a substantial interest in robust enforcement of 

the civil rights laws. It should treat seriously threats that can, as 

one court warned, ‘‘chill’’ the pursuit of civil rights claims. Congress 

should take steps to ensure that persons can enter the courthouse 

door when seeking protection under civil rights statutes. There is 

no more important issue with respect to our civil rights than the 

issue that is before this Committee today. If you close the door, 

then people cannot enforce rights. And if they cannot enforce 

rights, those rights do not exist for them. 

Thank you very much. 

[The prepared statement of Mr. Payton appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Mr. Payton. I apologize 

for having stepped out of the room there. I had a call I had to return. I have read your testimony, and I appreciate it. 

Greg Garre recently served as Solicitor General in the Bush administration. I think that is where we first met. And he received 

6 

his law degree from the George Washington University, currently 

is a partner at Latham & Watkins here in Washington, D.C. 

Mr. Garre, thank you for taking the time. Please go ahead, sir. 

STATEMENT OF GREGORY G. GARRE, PARTNER, LATHAM & 

WATKINS, LLP, WASHINGTON, D.C., AND FORMER SOLICITOR 

GENERAL OF THE UNITED STATES 

Mr. GARRE. Thank you, Chairman Leahy, and thank you, members of the Committee. It is an honor to appear before you today 

and participate in this important discussion on the Supreme 

Court’s recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. 

Twombly. Nearly a year ago to this day, I had the privilege of appearing 

before the Supreme Court and arguing the Iqbal case as Solicitor 

General of the United States. The Court’s decision in Iqbal, which 

followed and applied its Twombly decision, provides important 

guidance on the threshold standards for pleading claims in Federal 

court. The Iqbal and Twombly decisions stand for a proposition 

that ought to be noncontroversial and come as little surprise: In 

order to subject a defendant to the demands of civil litigation, conclusory and implausible allegations of wrongdoing will not suffice. 

Rather, a plaintiff must provide allegations that, if true, permit a 

reasonable inference that the defendant is liable for the alleged 

misconduct. 

Far from bolts out of the blue, the Iqbal and Twombly decisions 

are firmly grounded in prior precedent at both the Supreme Court 

and the appellate level. Indeed, courts have for decades recognized 

that broad and conclusory allegations of wrongdoing are not sufficient to state a claim for relief, and that while it is generous, the 

Federal notice pleading regime it is not limitless. The Iqbal and 

Twombly decisions are a natural outgrowth of that well-settled law, 

and the decisions serve important interests. In particular, as the 

Iqbal case underscores, they ensure that Government officials are 

not distracted from performing their duties by the demands of civil 

discovery and responding to implausible claims of wrongdoing. As 

Justice Stevens recognized more than 25 years ago, protecting Government officials from such burdens is critical to ensuring that our 

officials ‘‘perform their sensitive duties with decisiveness and without potentially ruinous hesitation.’’ 

If, as Second Circuit Judge Jose Cabranes observed, Mr. Iqbal 

were successful in obtaining discovery from the former Attorney 

General and Director of the FBI based on his conclusory allegations, then ‘‘little would prevent other plaintiffs from claiming to be 

aggrieved by national security programs and policies from following 

the blueprint laid out by this lawsuit to require officials charged 

with protecting our Nation from future attacks to submit to prolonged and vexatious discovery processes.’’ Fortunately, that blueprint does not exist today thanks to the Supreme Court’s decision 

in Iqbal. 

In the wake of the Twombly and Iqbal decisions, some critics 

have suggested that the decision will usher in a sea change in Federal pleading practice and result in the wholesale dismissal of 

claims. The evidence simply does not bear this out. The most comprehensive study of which I am aware is now being conducted by 

7 

the Advisory Committee on Civil Rules, which is comprised of 

judges and practitioners who are experts in civil procedure. That 

study, which has looked at every appellate decision discussing and 

citing the Iqbal case, concludes that the decisions have not resulted 

in any major change in pleading practice. 

Particularly in light of the lack of evidence of any wholesale 

change in pleading practice at this time, Congressional action is 

not warranted at this time. 

Moreover, if the proposed legislation were enacted, it would not 

only create great uncertainty and unpredictability as to pleading 

standards, but substantially lower the standards from the law that 

existed at the time of Twombly and Iqbal. In particular, legislation 

that would mandate the so-called ‘‘no set of facts’’ language from 

Conley v. Gibson would be unsound. Conley’s no set of facts language has never been taken literally by the lower courts, and as 

seven Justices, led by Justice Souter, recently observed, Conley’s 

‘‘no set of facts’’ language has been ‘‘questioned, criticized, and explained away long enough.’’ Mandating that standard would be a 

recipe for conflict and confusion in the lower courts, not to mention 

an invitation for baseless and implausible lawsuits. 

Finally, there is a process for monitoring the situation and responding, if need be: the judicial rulemaking process established by 

the Rules Enabling Act. The Rules Committees, which are comprised of the Nation’s top experts on Federal practice and procedure, are particularly well suited to evaluate the situation and determine whether any response is warranted. With respect to this 

Committee, there is no reason for Congress at this time to supplant 

the time-honored judicial rulemaking process here. 

Thank you, Mr. Chairman. I look forward to answering the Committee’s questions. 

[The prepared statement of Mr. Garre appears as a submission 

for the record.] 

Chairman LEAHY. Well, thank you, Mr. Garre, for being here. 

You obviously know that maybe some will disagree with your testimony, but as I have found before, you have stated your position 

very succinctly, and I appreciate that. 

Professor Stephen Burbank is currently the David Berger Professor for the Administration of Justice at the University of Pennsylvania Law School. He teaches classes in civil procedure and received his law degree from Harvard University. 

Professor, we are delighted to have you here. Please go ahead, 

sir. 

STATEMENT OF STEPHEN B. BURBANK, DAVID BERGER PROFESSOR FOR THE ADMINISTRATION OF JUSTICE, UNIVERSITY OF PENNSYLVANIA LAW SCHOOL, PHILADELPHIA, 

PENNSYLVANIA 

Mr. BURBANK. Thank you, Chairman Leahy and members of the 

Committee. Thank you for inviting me to testify about the vitally 

important question whether recent decisions of the Supreme Court 

have limited Americans’ access to court. I commend the Committee 

for recognizing the serious potential for damage posed by these decisions. I would like specially to commend Senator Specter for his 

early action in introducing a bill to overrule the Court’s decisions, 

8 

thus signaling concern to the bench, the bar, and the public, and 

stimulating interest and debate. Appendix A to my prepared statement includes a draft substitute amendment for the Committee’s 

consideration. It takes a somewhat different approach that was inspired by a provision in the 1991 Civil Rights Act, reflecting my 

view that the primary purpose of any legislation responding to the 

Court’s decisions should be to restore the status quo until and unless careful study, enabled by a process that is open, inclusive, and 

thorough, supports the need for change. 

I am concerned that the Court’s decisions in Twombly and Iqbal 

may contribute to the phenomenon of vanishing trials, the degradation of the Seventh Amendment right to jury trial, and the emasculation of private civil litigation as a means of enforcing public 

law. I am particularly concerned because in rendering them the 

Court evaded the statutorily mandated process that gives Congress 

the opportunity to review, and if necessary to block, prospective 

procedural policy choices before they become effective. Both the 

process used to reach these decisions and their foreseeable consequences undermine democratic values. 

Of course, no one yet knows enough about the impact of Twombly 

and Iqbal to state with confidence that they will cause a radical 

change in litigation behavior or the results of litigation. Still, Appendix B to my prepared statement contains a sample of many 

lower-court cases suggesting or making explicit that complaints 

have been dismissed that would not have been dismissed previously, and early empirical work suggests that Twombly and Iqbal 

have indeed had a disproportionately adverse impact on the usual 

victims of ‘‘procedural’’ reform—civil rights plaintiffs. 

Moreover, the relevant question should be, in my opinion: Who 

should bear the risk of irreparable injury? In my view, it should 

not be those usual victims of ‘‘procedural’’ reform, and it should not 

be the intended beneficiaries of Federal statutes that Congress intended to be enforced through private civil litigation. 

Notwithstanding recurrent pressure to authorize fact pleading in 

certain categories of cases, the Supreme Court repeatedly insisted 

that such a change would require rulemaking or legislation, and in 

recent years, the Rules Committees of the Judicial Conference 

abandoned proposals to adopt fact pleading across the board. In 

light of this history, Twombly and Iqbal prompt the question: What 

changed other than the membership of the Supreme Court? My 

prepared statement identifies what in the architecture of these decisions may lead to mischief, both of the sort that the framers of 

the original Federal Rules sought to avoid and a whole new brand 

of mischief reposing in a generally applicable plausibility requirement that depends upon ‘‘judicial experience and common sense.’’ 

I conclude, in any event, that the defects of process, institutional 

competence, and democratic accountability underlying the Court’s 

decisions are sufficiently serious, standing alone, to warrant legislation requiring a return to the status quo ante until they have 

been cured by a new (and very different) process. 

I usually avoid the term ‘‘judicial activism’’ because, in my experience, people use it as a label to describe court decisions they do 

not like without reference to an objective standard. Twombly and 

particularly Iqbal are examples of judicial activism according to an 

9 

objective standard—namely, the Enabling Act and the Court’s own 

decisions distinguishing judicial interpretation from judicial 

amendment of the Federal Rules., For the Court has told us that 

‘‘we are bound to follow a Federal Rule as we understood it upon 

its adoption, and we are not free to alter it except through the process prescribed by Congress in the Rules Enabling Act.’’ 

Twombly and Iqbal’s defenders must pretend that interpretation 

is a process sufficiently capacious to accommodate: 

First, the abandonment of the system of notice pleading that the 

drafters of the original Federal Rules intended, that Congress and 

the bar were told in 1938 had been implemented in the Federal 

Rules, and that the Supreme Court embraced as early as 1947; 

Second, its replacement by a system of complaint parsing that is 

hard to distinguish from the complaint parsing under Code pleading that the drafters of the original Federal Rules explicitly rejected; 

And, third, a wholly new general requirement of plausibility. 

I understand that the difference between interpretation and judicial lawmaking is one of degree rather than kind, but here the degrees of separation approach 180. 

In sum, comparing the role that those who wrote the Federal 

Rules envisioned for pleading and what they thought could fairly 

be demanded of plaintiffs filing complaints with the new world 

celebrated by Twombly and Iqbal’s defenders leaves no doubt that 

the Court in those cases ignored previous acknowledgments that it 

has no power to rewrite the rules by judicial interpretation. One 

can only wonder at the spectacle of Justices who deride who deride 

a ‘‘living Constitution’’ enthusiastically embracing living Federal 

Rules. From this perspective, the legislation I favor would bring 

back the Federal Rules in Exile. 

[The prepared statement of Mr. Burbank appears as a submission for the record.] 

Chairman LEAHY. Thank you very much, Professor. Incidentally, 

I agree with what you said about Senator Specter. This is an area 

where both publicly but also in many, many conversations we have 

had privately, when he was Chairman of this Committee and otherwise, he has taken that position. Senator Specter has been nothing but totally consistent in that regard, and I applaud him for 

that. I am glad you mentioned that. 

Mr. Payton, the Iqbal decision was issued just 6 months ago, and 

it involves technical procedural questions. One of the things I have 

heard from people when we scheduled this hearing, they said, 

‘‘Why not just wait until the new standard gets sorted out by the 

lower courts or by the Civil Rules Committee of the Judicial Conference? ’’ How would you respond to that? Why not just wait? Why 

should we act? 

Mr. PAYTON. Well, here is what we know—— 

Chairman LEAHY. Is your microphone on, sir? 

Mr. PAYTON. Here is what we know and why we really cannot 

wait. In that short period of time, the decision has had an effect 

on the cases I was talking about, civil rights cases, and it has resulted in many of them being dismissed that otherwise would not 

have been dismissed. Those victims of discrimination, those alleged 

10 

victims of discrimination, they cannot wait. Their cases were 

thrown out. And every day we go forward, more will be thrown out. 

Let me put this in—I do not want to overstate this, and I think 

I did not overstate it. I am not saying that all civil rights cases are 

being dismissed. I am not saying that we know enough to say that 

there has been a wholesale abandonment of civil rights cases. But 

we know enough right now to know that Iqbal has had a very 

harmful effect on substantial numbers of civil rights cases. I do not 

think there is any question about that. The cost of waiting is thousands of cases being thrown out that otherwise would have proceeded and would have been found to be meritorious. So waiting 

has an enormous price and cost, I would say, to the fabric of our 

society. People who are victims of discrimination will be foreclosed 

from proceeding to vindicate their rights. If you cannot enforce 

your rights, you do not have rights. That is why we cannot wait. 

Chairman LEAHY. Thank you. 

Mr. Garre, you would disagree, I assume. Make sure your microphone is on. 

Mr. GARRE. I certainly agree with Mr. Payton that there has not 

been any evidence of a wholesale change in pleading practice. I 

think the study that I referred to in my testimony being undertaken by the Advisory Committee on Civil Rules indicates that 

courts have not seen a major change in pleading practice. 

One of the questions that that study raises is with respect to the 

cases that have been dismissed—and there have been some cases 

that have been dismissed, civil rights cases, other cases. We need 

to know more. We need to know whether or not meritorious claims 

are being dismissed. We need to know whether these are cases that 

would have been dismissed under the law before Iqbal and 

Twombly. Are there cases that are being dismissed because of any 

change in the law from Iqbal and Twombly? And we also need to 

know—and I think this is very important. We need to know where 

cases are dismissed, what is happening when plaintiffs are given 

liberal leave to amend their complaints and come back and attempt 

to state new claims. At that point, are plaintiffs coming back with 

sufficient allegations? 

One of the things that the courts have made clear—and this has 

not changed at all—is that there is liberal leave for amending 

pleadings granted under the Federal Rules, Federal Rule 15. In 

fact, the Iqbal case was remanded, so the plaintiff could be given 

an opportunity to amend. 

So I think there is a lot that we need to know. 

Chairman LEAHY. I am going to ask Professor Burbank the same 

question, but you say you have to know if they are meritorious 

cases. If they are dismissed, how are we ever going to know if they 

are meritorious? 

Mr. GARRE. Well, what I mean by that, Senator, is that these are 

cases that would have met the pleading threshold under Rule 8 

even if you went back and looked at the law before Twombly and 

Iqbal, which did make clear that, number one, conclusory allegations were not sufficient to state a claim; and, number two, that 

you had to state something more at reasonable inference for believing there is wrongdoing. 

11 

Professors Wright and Miller, in their famous treatise said before 

the Twombly case, I quote, ‘‘The pleading must contain something 

more than a statement of facts that really creates a suspicion of a 

legally cognizable right of action.’’—which I think is the same concept that the Supreme Court has expressed in the plausibility, a 

reasonable inference of wrongdoing. 

So I think that the quarrel that I would have with Mr. Payton 

is only insofar as let us look at the cases that have been dismissed 

and make an assessment as to whether these are cases that are 

being dismissed as a result of some new standard or these are 

cases that would not have met the threshold standard to begin 

with. 

Chairman LEAHY. But I also worry—I mean, we could look at 

them. We could look at them, and we could spend years looking at 

them, and by then you may have no remedy at all because of the 

time. But I understand your answer. 

Professor Burbank, the same question to you, sir. Why shouldn’t 

we just wait? 

Mr. BURBANK. Thank you. I think, in response to Mr. Garre’s remarks, it is important to note that the cases contained in Appendix 

B to my prepared statement are cases only following Iqbal—not following Twombly, but only following Iqbal—in which it is suggested 

or made explicit that these are complaints that would have survived under the previous regime. 

Second, I am sorry, but the memorandum that Mr. Garre refers 

to is not a study at all. It is a summary of cases by a law clerk. 

Now, I have great respect for law clerks. I was once a law clerk 

myself. And I have great respect for the person for whom—— 

Chairman LEAHY. So was I. 

Mr. BURBANK. For the judge for whom this person is a law clerk. 

But it is a summary of cases, appellate decisions and a non-random 

sample of district court cases. It is not a study. Mr. Garre is confused. The Federal Judicial Center, on behalf of the Rules Committees, is conducting a study looking at actual docket entries. That 

is going to take quite a while. That is going to take quite a while. 

But the Kuperman—if that is her name—memorandum is not a 

study at all. There is a study underway, and it will take a good 

deal of time. 

Now, I agree with Mr. Payton that we should not wait, you 

should not wait, the Congress should not wait, because we are talking here about irreparable injury. These are cases, when they are 

dismissed, they are not going to be able to be brought back. The 

law of preclusion, even if there is a change in the pleading law, will 

prevent these people from ever having their rights enforced. Moreover, there is a risk of irreparable injury not just to individual 

plaintiffs who are now being dismissed under Twombly/Iqbal, but 

to the values and policies that underlie a whole host of Congressional statutes that Congress intended to be enforced through private civil litigation. 

Chairman LEAHY. My time is exhausted, but what I worry about 

in this whole thing is a 5–4 decision which, at least in my impression, changes precedent dramatically, changes our Rules of Civil 

Procedure by Court fiat. 

12 

I have been at meetings of the Judicial Conference. The Chairmen and Ranking Members of both the Judiciary Committees of 

the House and Senate are always invited to speak there. If the 

Chief Justice wanted to change the Rules of Civil Procedure, frankly, I think it would have been a lot better to have asked the Judicial Conference, raise it with them, ask for changes. You have got 

the Rules Enabling Act. You have got all the other processes flowing through, and at least there would be a great deal of input rather than five people—I am not sure that any of them have been trial 

judges, but to do this, it just bothers me a great deal. 

But, anyway, my time is up. I am going to turn the gavel over 

to Senator Whitehouse, and I thank you all very much. 

Senator WHITEHOUSE [presiding]. Thank you, Chairman. By virtue of my role as stand-in Chair for the remainder of the hearing, 

the witnesses will be enjoying my company through the entire 

hearing. And so I will put myself at the end of the list and yield 

my time to Senator Specter, who will be followed by Senator 

Franken and anybody else who should arrive, and then I will bat 

clean-up toward the end. 

Senator Specter. 

Senator SPECTER. Mr. Garre, we have the Rules Enabling Act, 

which explicitly set forth the procedures for an Advisory Committee 

on Civil Rules, then a Standing Committee on Civil Rules, the full 

Judicial Conference, and the Supreme Court, and then Congress 

has the last word. Isn’t what the Supreme Court has done here in 

the face of contravening that express legislation engaging in, as 

Professor Burbank says, ‘‘judicial lawmaking’’ ? 

Mr. GARRE. Senator Specter, I do not think that is what the Supreme Court has done here. I think it has done here what is done 

in numerous cases dealing with questions arising under the Federal—— 

Senator SPECTER. Well, if it has done it in numerous cases, that 

does not absolve it from judicial lawmaking. They do that all the 

time, perhaps not quite as flagrantly. 

Mr. GARRE. I think what the Court is doing here is interpreting 

Rule 8, and the language in Rule 8, in particular, it says ‘‘short and 

plain statement of the claim’’ showing that the plaintiff is entitled 

to relief. And I think if you look at the Twombly case, which was 

a 7–2 decision written by Justice Souter, where there was widespread consensus on the Court of what the standard should be, 

they are interpreting Rule 8, and that is a perfectly legitimate 

function for the Supreme Court. 

Senator SPECTER. Professor Burbank, isn’t that a highly strained 

interpretation of what went on here? Isn’t this draconian, to use a 

better word than ‘‘sea change,’’ in the pleading rules? 

Mr. BURBANK. Yes, Senator. It is a fairy tale, and for those who 

are being kicked out of court, it is a grim fairy tale. That is with 

one ‘‘M.’’ This is not interpretation under any reasonable interpretation of that word. 

Indeed, I would note that, to my knowledge, no Court had ever 

previously relied on the word ‘‘showing’’ for the purpose for which 

the Court relied on it in Twombly and Iqbal. This is not interpretation. These cases cannot, if you will excuse me, plausibly be tied 

to the Supreme Court’s own previous cases. 

13 

If you look at the cases on which Mr. Garre relies in attempting 

that, you will find that two of them were authored by Justice Stevens. Guess what? Justice Stevens dissented in both Iqbal and 

Twombly. You will find that another one—and there are only four 

or five cases cited by Mr. Garre—authored by Justice Breyer, was 

a unanimous opinion, which means that it was joined by Justice 

Stevens. And then if you look further at the details of those cases, 

you will find that they do not, in fact, come close to what the Court 

did in Iqbal and Twombly, which, of course—— 

Senator SPECTER. Professor Burbank—— 

Mr. BURBANK.—is why Justice Stevens dissented. 

Senator SPECTER [continuing]. I hate to interrupt you, but you 

have already convinced me, and I want to turn to Mr. Payton. 

Congratulations on what the NAACP Legal Defense Fund does 

and congratulations to you. And we do not have time to take up 

all of the meritorious claims which would be tossed out. And just 

a personal aside, this decision is a decision I found particularly disheartening, objectionable, because the first day in law school with 

Charles E. Clark, the author of the Rules of Civil Procedure, in 

1938—then he was on the Second Circuit—talked about the notice 

pleading of Dioguardi v. Durning and getting away from common 

law pleading rules which had stifled meritorious claims, if there 

was something totally out of order, just using procedure to toss 

people out of court. 

We do not have time to take up all the areas where it is going 

to hurt, but none is more important than civil rights. And I would 

be interested in, as factual as you can be, about how this is going 

to undermine civil rights enforcement. 

Mr. PAYTON. Thank you very much. I think that that is what I 

go over in my written testimony, category by category, just how 

this has already undermined civil rights plaintiffs. You know, to 

put it in the context of your first question to Mr. Garre, the normal 

order of making changes in the Federal Rules would have resulted 

in a multi-year study by the various advisory committees into what 

the effect of any such changes would be on all sorts of cases, including civil rights cases. 

As far as I am aware, there was no concern given in either Iqbal 

or Twombly about the effect of those decisions on anything beyond 

the four corners of those decisions. And here we are now trying to 

deal with something that has had, I would say, very predictable 

consequences that are going to affect the ability of our civil rights 

plaintiffs to actually vindicate themselves when there has been no 

real exploration of that at all. And I think it is critical that we go 

back to the status quo, prior to Iqbal and Twombly, in order to preserve something that has been so important, I would say, to the 

fabric of our society. A person comes in and says that she is a black 

woman, that she applied for a job, and that she saw her application 

taken to the back room and she heard from somebody that it was 

put into a pile and no one reviewed her application. She brings 

that claim, and under Iqbal and Twombly, maybe she gets thrown 

out. Before Iqbal and Twombly, she gets discovery, and she actually gets to find the smoking gun. 

You know, there are smoking guns out there, and under the 

plausibility standard, maybe those cases get thrown out. If you are 

14 

not thrown out, you can discover the smoking gun—and we all 

know all sorts of cases where, in the course of discovery the document shows up that, in fact, reveals that there was really an awful 

procedure that was occurring. 

We know the consequences right now of what has happened because of Iqbal. We know the consequences. They may be greater 

than we feared. But we know the consequences already have been 

harmful to very important civil rights, I would say, values we all 

share. Let us make sure we put that to an end. 

Senator SPECTER. Just a concluding statement. It is infrequent 

that we have such a blatant case of judicial lawmaking. There are 

lots of other cases which are not detected and not acted upon, and 

I am continuing the battle to televise the Supreme Court so there 

will be some public understanding. Well, the public is never going 

to understand this issue, but this Committee is moving faster. 

There is companion legislation in the House, and I hope that we 

are able to move promptly. 

There is one thing that there is unanimity on around here. It is 

hard to find something, but on judicial lawmaking, I think everybody agrees it ought not to be done. 

Thank you very much, Mr. Chairman. 

Senator WHITEHOUSE. We are joined by the distinguished Ranking Member, who had important business with the Armed Services 

Committee earlier, and I would now call on him, if he wishes, to 

make his opening statement or simply questions the witnesses. 

Which would you prefer so the clock knows? 

Senator SESSIONS. Well, maybe a little of both. 

Senator WHITEHOUSE. All right. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. You know, one of the great events in my life 

was when I graduated from law school, in that year Alabama abandoned common law pleading and went to Federal Rules notice 

pleading. But prior to that, if you were going to file a lawsuit, you 

had to file a complaint that had some merit to it. You had to assert 

what rights you were filing under—Is this trespass? Is it negligence? Is it trespass on the case?—and create a whole body of 

pleading, demurrers, and such. It was a complicated process, and 

I felt we made progress when we moved away from that. 

But there has been a general sustained concern—and it is not 

against civil rights or anything else—that notice pleading becomes 

anything: ‘‘I do not like it. I think maybe I was abused. Pay me 

money. I want to sue you, and I want to take 2 years in court, and 

it will cost you $50,000, $500,000, and you will pay me, anyway.’’ 

So I think it is perfectly right that the Supreme Court would affirm a rule that if you cannot assert a facially plausible cause of 

action in your complaint, it ought not to go forward. If we are going 

to change the law—and Senator Specter has a bill to reverse the 

Supreme Court’s ruling, which is supported by the Federal Committee on Rules, I understand, and I expect them to submit some 

communication to our Committee to explain their view on it. If we 

have a change, we really ought to tighten up this thing a little bit. 

The pendulum has swung so far. In law school, you know, the quesVerDate Nov 24 2008 12:18 Jul 06, 2010 Jkt 056719 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56719.TXT SJUD1 PsN: CMORC
15 

tion of the professors was: Can you file a complaint on point paper? 

Remember, we heard that discussion. 

So that is my basic view of it. I do not see anything wrong with 

a requirement that a person who sues somebody at least be able 

to produce a coherent complaint so that it is facially plausible, but, 

you know, sorry I could not be here earlier. I look forward to examining more in-depth the different opinions that we have. 

Mr. Garre, is this some dramatic alteration of the law in the Supreme Court’s decisions that represents a major change in the way 

courts have been handling complaints over the years? 

Mr. GARRE. Thank you, Senator. No, the evidence that I have 

mentioned indicates that it has not been a drastic change. I referred to the memorandum being conducted under the auspices of 

the Advisory Committee, and Professor Burbank pointed out that 

that is being prepared by a law clerk for the Committee. If that is 

not good enough, I would point you to the statements of the Chair 

of that Committee, Judge Kravitz, who said earlier this fall that 

the courts were taking a fairly nuanced view of the Iqbal case. 

And I think you are quite right. Fundamentally the question is: 

Should it be enough for a plaintiff to present a conclusory and implausible claim to invoke the full machinery of the civil litigation 

process? Should it be enough for a plaintiff to come in with an implausible claim on its face, even accepting the allegations as true, 

to subject a defendant in any kind of case, whether it is a Government defendant in presenting potential interference with carrying 

out that person’s duties, or another defendant. And I think if you 

go back and you look at the Supreme Court decisions that I cite 

in my testimony, and if you look at the legion of case law in the 

lower courts before Twombly, they recognize quite clearly that, no, 

conclusory allegations are not enough, and that, yes, you have to 

have an allegation that is plausible that supports a reasonable inference of wrongdoing. 

I think that is, all things speaking, a fairly low threshold that 

is consistent with the notice pleading regime, and I think it is well 

grounded in prior precedent. 

Senator SESSIONS. Well, a lot of complaints are out there that 

most any kind of person who feels aggrieved sues a large number 

of defendants, and hopefully they can somehow shake some money 

out of them. And, frequently, people will pay several thousands of 

dollars, even if they have no liability at all, rather than spend large 

amounts of money in defense. Is it true—I guess you lawyers, I 

have heard some of these lawyers charge $500 an hour. Well, you 

have been sued. You are in Federal court. And you have got to advise your client. Can you go in there and say to your client, ‘‘Well, 

client, I do not think there is any problem here. I have spent 10 

hours on it, and you now owe me $5,000.’’ Or are you going to say, 

‘‘I better check this out. I do not want to get to court and be ambushed.’’ And they spend 100 hours. It easily can happen in these 

cases, and for not a lot of good if a person cannot state a claim that 

has a facial plausibility to it that would justify going to court. 

I know the old rules were too restrictive. Massachusetts and Alabama stayed within the last two States, I think, that stayed in that 

area, and we moved totally to the notice pleading of the Federal 

Rules. I think it is better. But I am just not feeling that the law 

16 

in America is being changed if the courts insist that at least you 

have a plausible complaint. 

The courts have dealt with this over the years as to what the notice pleading standard was set in Conley v. Gibson. It announced 

in Conley that it allowed dismissal only when the plaintiff can 

prove no set of facts to support his claim which would entitle him 

to relief. And courts have wrestled with that, no set of facts requirement for a number of years. 

Justice Souter in Twombly stated that the ‘‘no set of facts’’ standard has ‘‘earned its retirement’’ after ‘‘puzzling the profession for 

50 years.’’ In short, the Conley standard was confusing and too 

vague to be useful. To clarify that, the Court adopted a plausibility 

standard which requires a claim to be plausible on its face and not 

a formulaic recitation of the elements of a cause of action. So, to 

me, that is kind of what the Court is talking about. 

Just briefly, Mr. Payton, I will let you respond. Has the Court 

there got it wrong? Has Justice Souter, writing for the majority, 

somehow committed a big error in saying that you have got to have 

a facially plausible complaint to go forward? 

Mr. PAYTON. Let me make two points here. I think that preTwombly and Iqbal, federal courts had no problem weeding out 

cases that lacked merit. I think Mr. Garre has referred to them, 

and you have referred to them. I think courts had no problem 

weeding them out. The problem with what the Supreme Court has 

done now is that Iqbal and Twombly are having a very harmful impact on cases that I believe everyone would agree should have been 

allowed to go forward. 

You say ‘‘plausibility.’’ Let me tell you the problem with plausibility. Plausibility requires the district judge to actually decide 

what in his or her sense is plausible. The Conley v. Gibson case— 

let me just use that case—is the implementation of a cause of action that was developed by Charles Houston, who was the founder 

of the Legal Defense Fund. He argued two cases in the 1940s, 

Steele and Tunstall, and the challenge in those cases—and it is the 

same challenge that is in Conley v. Gibson—is whether or not an 

all-white union has a duty to its black members, a duty of fair representation. 

When Houston argues those cases, there is no such legal requirement. He puts forward those facts, and he argues to the Court and 

he wins, and the Court says there is a duty of fair representation 

that the white union has to its black members. The same issue 

comes up in Conley v. Gibson. And the question is: Is there, in fact, 

that duty in the context of the facts in Gonley? 

If you simply said it is a plausibility standard, the plausibility 

standard would have knocked that case out. It would have knocked 

that case out. There are an awful lot of cases out there where civil 

rights plaintiffs would be out of court under a plausibility standard—even though today everyone in this room would acknowledge 

that those cases established principles that we cherish as what our 

civil rights laws ought to be. 

The way to go about doing any change in our Federal Rules is 

you do the study first to see what effects it has. If there is a concern about complex antitrust cases, let us see what we ought to do 

about complex antitrust cases, but do not throw out the civil rights 

17 

cases in the wave of trying to deal with Twombly, which is a complex antitrust case. 

There is an order of things here that is really quite important, 

and the harm that we are now doing to our panoply of civil rights 

cases is completely undeserved and harms our entire society. That 

is my point. It harms our entire society. 

Senator SESSIONS. Well, I will look at that and just review it, but 

I do not think those complaints would be dismissed out of hand. 

I think you can formulate a complaint that a union has got a duty 

to represent all its members. So I think we can get overconcerned 

about the implications. 

Senator WHITEHOUSE. Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

I have got to say I am a little confused here on something, and 

basically it is what has happened since Iqbal, because Mr. Garre 

basically said that there is a study that said that nothing bad has 

happened, and Professor Burbank has said there was not a study 

really at all, it was just a summary. So I do not like being told 

something is a study and it is a summary. I mean, I think we have 

a right—the Ranking Member said that he is going to look back. 

He is sorry he arrived late, but he wants to look back at the difference of opinions. And I think we are all entitled to our opinions. 

But we arrive at opinions by looking at facts, and facts come from 

studies, not summaries and memoranda. And I think that in testimony to Congress, it should be accurate when you characterize 

something. 

So what is confusing to me is that Mr. Garre seems to be saying 

that nothing meritorious has been turned down, and Mr. Burbank 

says there has been, by virtue of this study, which was not a study, 

after all. So I guess, Mr. Payton, can you give me any examples of 

something meritorious in the civil rights area or in any area that 

you think should have been heard that was not? 

Mr. PAYTON. We go over some cases in my written testimony one 

by one. I think the dispute is a little bit different, so let me just 

say what the dispute is. 

What I heard Mr. Garre say is there has been no wholesale 

change. But that is a concession that there has been a change, and 

that change has clearly affected civil rights cases. 

Now, we do not know the full impact of that change, but we certainly know there has been a change that has harmed civil rights 

plaintiffs. I do not think there is any question at all about that. I 

do not think Mr. Garre is going to contest that there has been a 

change that has harmed civil rights cases. 

The extent of it we can argue about, but my point is we should 

not tolerate any change, and that is not the way we should be proceeding here. I believe the change is far larger than he thinks it 

is, but he concedes that there has been a change, I would say even 

a significant change. He says it is not a wholesale change, but if 

this were a wholesale change, this room would be filled with thousands of people in here talking about what has happened. We have 

only had 6 months since this decision. 

So the cases have not actually percolated up so that we could see 

them, but on the matters that really affect the fabric of our society, 

I do not think there is any question about that. 

18 

You know, Senator Sessions, what I was saying about plausibility is that when you are trying to get the court to adopt a brandnew cause of action, that is why a district judge may not think it 

is plausible. A lot of civil rights law has been made by courts in 

complaints that we have filed, where we have asked courts to actually let us proceed so we can show that actually this ought to be 

part of the lexicon of our civil rights laws. 

Senator FRANKEN. Can you give us just one example from your 

written testimony? 

Mr. PAYTON. Oh, sure. We had an example of a Hispanic man 

who was denied the ability to vote, and he filed a complaint challenging that, and he was thrown out of court on the grounds that 

he actually could not show enough to say that he was the victim 

of discrimination. That would have clearly passed under the standard in place 2 years ago. 

There is a whole raft of cases just like that where people used 

to be able to simply walk into Court and they now are being held 

to standards that are very difficult to meet, and in the case I just 

mentioned, the plaintiff may not have been able to amend his complaint to solve that. He could have brought that claim before and 

actually probably have prevailed on it. 

Senator FRANKEN. So there has been a raft of complaints, a raft 

of cases like this? 

Mr. PAYTON. Yes. 

Senator FRANKEN. In your judgment. 

Mr. PAYTON. Yes. 

Senator FRANKEN. But a raft is short of wholesale? 

Mr. PAYTON. Here is what we do not know—— 

Senator FRANKEN. I am really trying to get some kind of distinction that means something to me. 

Mr. PAYTON. Yes. That distinction does not mean anything to me, 

either. There have been very substantial numbers of cases that 

have been harmed already. Whether that amounts to what someone would view as a wholesale change, I am actually indifferent to 

that. There have been substantial numbers of cases in the civil 

rights area that have been harmed. Those numbers of cases are 

only going to increase as we go through time. 

My point is we should not have wanted to harm any of those 

cases. That is not the way we should go about changing our Federal Rules and our notice pleading requirement. 

Senator FRANKEN. So what we had was a study that was not a 

study saying it was not a wholesale change, but it is really a summary and there has been a raft of change. 

Mr. PAYTON. Substantial numbers of cases have been affected. 

Senator FRANKEN. Thank you. 

Mr. PAYTON. Substantial numbers of cases have been affected. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Thank you, Senator. 

Mr. Garre, since you are the person here defending this opinion, 

let me ask you to defend the plausibility standard. I have a number 

of concerns about it, the first of which is that I do not find it anywhere else in the law. It seems to have been invented for this particular occasion. 

19 

The second problem that I have with it is that, in my experience, 

misconduct is inherently implausible. It is implausible that the 

woman that Mr. Payton referred to who brought in her resume and 

who was African-American and when that went into the back office 

somebody would be so callous as to just throw that into the wastebasket without further analysis because she was black. That is implausible. 

It is implausible that a CEO with a bizarre fetish goes after a 

female staffer in some way that is inappropriate and in violation 

of her right to a workplace that is free of that kind of discrimination and harassment. 

It is always implausible, I would say, when there are these sort 

of, you know, bizarre or wrongful elements of conduct. So when you 

say that the standard is that something, if it is implausible, that 

is a strike against it, that seems to be putting a big thumb on the 

scales here and buttressing the status quo in which everybody is 

presumed to be a regular person who will not engage in this kind 

of conduct. 

And, last, it is so subjective. The whole notion of plausibility is 

the relationship between a hypothesis and a set of beliefs. It imports the judge’s set of beliefs into the equation in a way that I 

have never seen before in the law. And it strikes me, particularly— 

and I know the very distinguished Senator from Alabama will disagree with me, but particularly when you have a bench that has 

been deliberately, in my view, populated with people who bring a 

particular worldview that when you say, ‘‘OK, guys, bring that 

worldview into this discussion,’’ you are stacking it up against the 

plaintiff. You have got a standard that has no meaning because it 

has never been used before. You have got a standard that is highly 

subjective. And you have got the sort of substantive bias against 

the plaintiff’s general allegation because thank God those general 

allegations tend to be—guess what?—implausible because most 

people are good and do not engage in that kind of behavior. 

How can you defend the use of the word ‘‘plausibility’’? 

Mr. GARRE. Thank you, Senator. First, if I could just make two 

preliminary remarks and then address your question. 

Senator WHITEHOUSE. Sure. 

Mr. GARRE. I wanted to refer to page 21 of my written testimony 

which describes the memorandum that I referred to earlier being 

undertaken by the Advisory Committee, and so I think it clearly 

sets forth what that memorandum is and what it says, and that 

refers to Senator Franken’s questions, and I did want to state that 

for the record. 

Second, there was some reference earlier to the Conley case and 

the suggestion that that case would come out differently under 

Iqbal. And I would point the Committee to page 563 of the 

Twombly decision where the Court specifically says that the complaint in Conley ‘‘amply’’ stated a claim under the Federal Rules of 

Civil Procedure. What the Supreme Court took issue with was a 

sentence in Conley where it described the ‘‘no set of facts’’ language. The Court did not take issue with the result in Twombly— 

in Conley, and that is made clear in the Twombly decision. 

Senator WHITEHOUSE. All right. Now—— 

Mr. GARRE. But let me answer your question. 

20 

Senator WHITEHOUSE. As former Solicitor General, I thought you 

would be better about answering questions. 

Mr. GARRE. I appreciate that, Senator. 

Senator WHITEHOUSE. We are not the Supreme Court, but we do 

want our questions answered. 

Mr. GARRE. Plausibility is—— 

Senator SESSIONS. Well, he maybe said a little comment on the 

preamble of your question. Excuse me. 

Senator WHITEHOUSE. Now everybody is jumping in. It is getting 

harder and harder to get a question answered in a hearing around 

here. 

Mr. GARRE. That is familiar from the Supreme Court, Senator. 

The plausibility standard is defined as a reasonable inference of 

wrongdoing. You look at the factual allegations, you assume that 

they are true, and then the question is: Is there a reasonable inference of—— 

Senator WHITEHOUSE. But they do not use the word ‘‘reasonable.’’ 

They use the word ‘‘plausible.’’ And that is, to me, a rather unique 

word. 

Mr. GARRE. Senator, they define plausibility as a reasonable inference of wrongdoing. That is in the Court’s decision. I can 

find—— 

Senator WHITEHOUSE. So you would be perfectly comfortable getting rid of the word ‘‘plausible’’ once and for all and switching it 

with ‘‘reasonableness’’ because that is what it really means? 

Mr. GARRE. I think that is—— 

Senator WHITEHOUSE. You are comfortable dumping the plausibility standard and using a pure—using ‘‘reasonableness’’ wherever 

the word ‘‘plausibility’’ appears. 

Mr. GARRE. I think that is the way that the Court itself described the standard, Senator. And if you go back and you look at 

the cases—and I have cited a number of them in my testimony— 

where they do not—— 

Senator WHITEHOUSE. Why would they—this is a Court that 

knows what words mean. The word ‘‘reasonable’’ is one of the most 

widespread words in jurisprudence. Why would they bring in a different word, ‘‘plausible,’’ if they did not intend to open the field to 

a more subjective point of view on the part of judges? Why not just 

use the word ‘‘reasonable’’ when ‘‘plausible’’ has a meaning that allows for more subjective application? I mean, if you look at the definition of ‘‘plausible,’’ it is ‘‘superficially fair or reasonable or valuable, but often specious.’’ Superficially, the quality of seeming reasonable—not being reasonable, seeming reasonable or probable. It 

is a word with a different meaning. Why would they use that word 

when reasonableness is a known, widely used, almost term of art 

in the law? Why bring in a word that is not a term of art and that 

imparts that subjective element that allows a judge to say, ‘‘Well, 

that does not seem right to me, particularly when what you have 

in these cases is a fight of somebody who has been injured against 

the status quo that would like to sort of deprecate that injury or 

that it actually never happened? 

Mr. GARRE. I think to the extent, Senator, you are concerned 

about confusion about what ‘‘plausibility’’ means, I think the decision answers it, and it is on page 1949 of the Iqbal decision, where 

21 

the Court says, ‘‘What do we mean by ‘plausibility’? We mean the 

plaintiff must plead ‘factual content’ that allows the Court to draw 

a reasonable inference that defendant is liable for the misconduct 

alleged.’’ 

And if you look at the Iqbal case and the Twombly case, it explains what the Court meant—— 

Senator WHITEHOUSE. So you do not see any hint or whisper of 

mischief in the importation of this word ‘‘plausible’’ into these decisions? 

Mr. GARRE. Well, I think as defined—— 

Senator WHITEHOUSE. On purpose. 

Mr. GARRE [continuing]. By the Court’s decisions, and we are interpreting the Supreme Court’s decisions. And I think if you look 

at what ‘‘plausibility’’ meant in Iqbal and in Twombly—in Twombly 

you had a complaint that alleged an antitrust conspiracy among 

competitors who engaged in parallel conduct. And what the Court 

said is, ‘‘Hey, we are going to accept these allegations as true.’’ But 

that is not a plausible claim of wrongdoing because competitors 

deal in a parallel way all the time, and that is not illegal. You have 

got to provide more allegations to create an inference that there 

was wrongdoing. 

Senator WHITEHOUSE. My point is the difference semantically between ‘‘plausible’’ and ‘‘reasonable’’ is that ‘‘reasonable’’ connects 

more directly to an objective standard; whereas, ‘‘plausibility,’’ by 

its very definition, imports a subjective point of view of the judge 

and the Court. And I do not see a good reason for that step, from 

reasonableness to plausibility. There is an actual semantic step 

that is taken there, and they did not need to do it. They did do it. 

I cannot believe that they did not do it on purpose. And when the 

distinction is that clear, it is basically a license to legislate from 

the bench. 

Mr. GARRE. And with respect, Senator, I think the Court did answer that concern in its decision when it defined—— 

Senator WHITEHOUSE. Well, they backed away from the term 

‘‘plausibility’’ by defining it in terms of ‘‘reasonableness,’’ but they 

still left it hanging out there to be used by judges in a way that 

has dominated the discussion today about this piece of judicial legislation, if you will. 

Mr. GARRE. But I think a judge that read that word in the abstract without reading the Court’s decision would not be doing his 

or her job, and I do not think we should assume that judges are 

disregarding the Supreme Court’s decision. 

The one other thing I would say is that these are principles that 

were agreed to by seven Justices led by Justice Souter in the 

Twombly case, and in the Iqbal case, the disagreement on the 

Court was not about what the principles were. It was about whether they were misapplied in that case. So there is a widespread consensus on the Court that these are the proper principles and interpreting Rule 8 of the Federal Rules of Civil Procedure. 

Senator WHITEHOUSE. Well, we will see. Anyway, do you wish to 

have a second round? 

Senator SESSIONS. Yes. 

Senator WHITEHOUSE. We have to wrap up in about 10 minutes. 

22 

Senator SESSIONS. OK, and I appreciate that, and you are very 

generous allowing me to go over. 

Senator WHITEHOUSE. And I would like to reserve 3 minutes for 

closing, so take a second round. 

Senator SESSIONS. OK. Well, Justice Souter talked about the 

Conley standard should be ‘‘best forgotten as an incomplete, negative gloss.’’ That is what he said about it. And I guess the seven 

Justices all signed on to that opinion. Is that right, Mr. Garre? Mr. 

Garre, you are reading your book there, but looking at the Advisory 

Committee notes to Rule 11, which requires the plaintiff’s attorney 

to file a legitimate complaint, it says this: ‘‘What constitutes a reasonable inquiry may depend’’ on factors including ‘‘whether the 

pleading, motion, or other paper was based on a plausible view of 

the law; or whether he depended on forwarding counsel or other 

members of the bar.’’ 

First, ‘‘plausible’’ does strike me—and I agree with you, Mr. 

Chairman, it is an unusual word. It is not something that we have 

normally seen a lot in law, but this was at least used in the Advisory Committee notes to Rule 11. I guess it never—but it just 

strikes me is that the Court is saying that notice pleading does not 

mean anything, you have got some responsibilities to craft a complaint that sets forth a cause of action that is worthy of requiring 

the defending party to spend perhaps hundreds of thousands of dollars to defend himself. A lawsuit is a serious thing. It is not sufficient to say, ‘‘I do not think that I was allowed to vote because of 

bias.’’ I do not know what the complaint was in that voting case, 

but you have to assert some basis before the county or city or the 

State, whoever defended that case, has to spend all the money and 

go to a lawsuit. You have got to assert a complaint that has some 

value there. 

In looking at your remarks in other matters, there are quite a 

number of cases, including the Second Circuit and others who have 

adopted this, haven’t they, Mr. Garre, and have not criticized it or 

expressed reluctance to follow the Supreme Court decision? They 

seem to have adopted it, for the most part. Is that correct? 

Mr. GARRE. I think that is correct, Your Honor. I mean, certainly 

there is a debate—— 

Senator SESSIONS. You get an ‘‘A’’ for saying ‘‘Your Honor,’’ 

but—— 

[Laughter.] 

Senator SESSIONS. It does convince me that you have been in 

court before in your life, and that is a good thing. 

Mr. GARRE. Thank you, Senator. 

Senator SESSIONS. Thank you. Mr. Chairman, I think you raise 

a good point. I do not know how you can word this, but in my view, 

creating—in my view, if we are going to write a statute to deal 

with the problem of pleading, I think the statute should be crafted 

in a way that requires a little more than the Conley case does, and 

I think practice and history shows us that as a matter of policy— 

not a lot more. A notice pleading is still a strong part of our law, 

and I support that. You do not want to throw people out of court 

for an unjustified reason. But everybody—the Rules of Procedure 

require that the law—the Rules of Procedure require some integVerDate Nov 24 2008 12:18 Jul 06, 2010 Jkt 056719 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56719.TXT SJUD1 PsN: CMORC
23 

rity and some coherence in the pleading, or else you do not go to 

court, you do not get in court. It is just that simple. 

So how we draw that line, I do not know. ‘‘Plausibility,’’ I agree, 

Mr. Chairman, is a word that I am not that familiar with, but they 

have defined it. They seem to have reached a view of how it should 

be defined and how it should be applied in the cases. And I do not 

think we should jump over the Rules Committee and be rewriting 

that Rule of Procedure today. Let us see where it goes, and let us 

see what they will correspond with us and what they will tell us 

their view is. 

Thank you. 

Senator WHITEHOUSE. I thank the Ranking Member. 

By way of sort of closing out, I guess, we have dealt with a lot 

of real specifics here, and I would like to do one of those sort of 

Google map bounces where you go way up before you come back 

down to the details again, and put what I think is the context for 

this decision forward, and that will, I guess, help define how plausible it is that this is a purely technical judgment by the Supreme 

Court and that it has no further purpose to close the courthouse 

doors. 

You know, I have said this before; I will say it again. We have 

seen over many years, I think, a very deliberate and surprisingly 

overt strategy to populate the courts, and particularly the Federal 

courts, with judges who have a particular political persuasion. It 

has been part of the Republican Party’s proclaimed strategy, so it 

is no secret. And the fact that an enormous infrastructure has been 

set up to accomplish it, vetting infrastructure like the Federalist 

Society to get people tuned up for the judicial appointments down 

the road, and the result has been that a small and determined 

group of ideologically active judges can control the Supreme Court 

when it wishes by 5–4. And it is not just a potential. You have seen 

it work out in a whole variety of different areas, not the least of 

which is the discovery of a constitutional right to own guns that 

had previously gone unnoticed by Supreme Courts for 220 years, 

and suddenly 5–4, poof, it magically appears. 

And scholars like Jeffrey Toobin who have looked at the Court 

for a long time have noted that they seem to be persistently and 

deliberately driving the Court in a particular direction and have 

noted the consistency between that particular direction and the 

current political ideology of the present Republican Party. 

And when you have a decision like this that tends to close the 

courthouse doors to consequences against senior Government officials, particularly senior Bush administration Government officials, 

particularly senior Bush administration Government officials that 

were involved in the national security programs that have been the 

subject of great criticism—and, in fact, there is a report due out 

any day on the Office of Legal Counsel, what went wrong there 

that permitted the torture program to go forward—it is hard not 

to see this in a context when there are clear winners and losers associated with this. And the clear winners are the corporations who 

have their own independent effort to demean and revile the courthouse and the jury and try to make it look like it is a real impediment on them and an unfair burden to be sued. And I think that 

is frankly unconstitutional. I think that our constitutional strucVerDate Nov 24 2008 12:18 Jul 06, 2010 Jkt 056719 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56719.TXT SJUD1 PsN: CMORC
24 

ture is not just executive, legislative, and judicial branches; it also 

includes juries. Juries turn up three times in the Constitution, not 

just the Article III courts but juries themselves. And I think corporations would love a world in which the only Government officials that they ever had to answer to were ones who had been rendered supple to their views by campaign contributions and corporate money. 

Tampering with legislators, tampering with executives is something that is licensed by our campaign finance laws. Tampering 

with a jury is an offense. And, yes, I think there are plenty of corporations who would like never to have to appear before a jury 

again because they cannot influence that jury. It is against the law 

to do that. It is the last place where somebody who is getting 

rolled, who all institutions of Government are stacked against, can 

still have their last stand and find a hearing and get a neutral 

judge and, more importantly, a jury of their peers who cannot be 

tampered with about the decision before them to make that call. 

And I cannot see this choice that the Court has made as independent of all of those surrounding facts. I think it is implausible. 

The hearing will remain open—— 

Senator SESSIONS. Mr. Chairman, could I just respond to say 

that I do not—I believe that Chief Justice Roberts and the six other 

Justices who ruled on this—I guess Roberts was on this opinion. 

Was he on this opinion? These are people who have seen thousands 

and hundreds of thousands of lawsuits work their way through the 

system, and they have a growing consensus that we have got a lot 

of frivolous lawsuits in the system, and that a person ought to at 

least be able to file a facially plausible complaint to get into court. 

This is not some agenda by some secret group out here. The 

Committee on Rules supports this agenda. Justice Cornyn—I will 

offer his statement for the record. He is a former Justice of the 

Texas Supreme Court. He supports it. So I think it is just a question of can we create a—has the Court improperly created—properly using the existing rules, interpreted erroneously to say that 

your complaint should have facial plausibility? And if we want to 

argue about that word, perhaps, but I think it is not against the 

law and the history of litigation in America. And, in fact, you go 

back 100 years, and you really had to plead with specificity to stay 

in court. It is a lot easier to be in court today than it used to be. 

Thank you. 

Senator WHITEHOUSE. You are very welcome. The statement of 

Justice Cornyn, Senator Cornyn, Attorney General Cornyn, will be 

accepted into the record, as, without objection, will a number of 

other statements. My own is already in. 

[The prepared statement of Senator Cornyn appears as a submission for the record.] 

Senator WHITEHOUSE. There is a coalition letter and statements 

from Hon. Louis Pollak; from Simon Lazarus of the Senior Citizens 

Law Center; from Alan Morrison at the George Washington University Law School; Michael Dorf at Cornell University Law School; 

Steve Crowley at the University of Michigan; Doug Richards at 

Cohen Millstein; Joseph Seiner, a professor at the University of 

South Carolina School of Law; David Shapiro, emeritus professor 

at Harvard Law School; Professor Spencer at Washington Lee Law 

25 

School; Professor—I cannot read it—Subin at Northeastern University School of Law. 

In any event, they will all be accepted into the record without objection, as well the statement of Senator Feingold. 

[The statements appears as a submission for the record.] 

Senator WHITEHOUSE. The record of the hearing will remain open 

for an additional week for any further statements that anybody 

wishes to add. This has been, I think, an instructive and lively 

hearing. All of the witnesses were extremely well prepared and 

thoughtful and argued their cases extremely well, and I was very 

impressed with the quality of the testimony. So I thank each of you 

for being here, and I will, without further ado, adjourn the hearing. 

[Whereupon, at 11:35 a.m., the Committee was adjourned.] 

[Questions and answers and submission for the record.] 

[Additional material is being retained in the Committee files, see 

Contents.] 

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