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OPEN ACCESS TO COURTS ACT OF 2009 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS AND 

COMPETITION POLICY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON

H.R. 4115 

DECEMBER 16, 2009 

Serial No. 111–124 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COURTS AND COMPETITION POLICY

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia, Chairman 

JOHN CONYERS, JR., Michigan 

RICK BOUCHER, Virginia 

ROBERT WEXLER, Florida 

CHARLES A. GONZALEZ, Texas 

SHEILA JACKSON LEE, Texas 

MELVIN L. WATT, North Carolina 

MIKE QUIGLEY, Illinois 

DANIEL MAFFEI, New York 

HOWARD COBLE, North Carolina 

JASON CHAFFETZ, Utah 

BOB GOODLATTE, Virginia 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

DARRELL ISSA, California 

GREGG HARPER, Mississippi 

CHRISTAL SHEPPARD, Chief Counsel 

BLAINE MERRITT, Minority Counsel 

(III) 

C O N T E N T S 

DECEMBER 16, 2009 

Page 

THE BILL 

H.R. 4115, the ‘‘Open Access to Courts Act of 2009’’ ............................................ 3 

OPENING STATEMENTS 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Chairman, Subcommittee on Courts and 

Competition Policy ............................................................................................... 1 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Courts and 

Competition Policy ............................................................................................... 6 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on Courts and Competition Policy ............................................. 8 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Member, Subcommittee on Courts and Competition Policy .. 12 

WITNESSES 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 17 

Mr. Eric Schnapper, Professor of Law, University of Washington, School 

of Law, Seattle, WA 

Oral Testimony ..................................................................................................... 23 

Prepared Statement ............................................................................................. 25 

Mr. Gregory G. Katsas, former Assistant Attorney General, Civil Division, 

U.S. Department of Justice, Washington, DC 

Oral Testimony ..................................................................................................... 65 

Prepared Statement ............................................................................................. 67 

Mr. Jonathan L. Rubin, Patton Boggs, LLP, Washington, DC 

Oral Testimony ..................................................................................................... 110 

Prepared Statement ............................................................................................. 112 

Mr. Joshua P. Davis, Professor, Center for Law and Ethics, University of 

San Francisco, School of Law, San Francisco, CA 

Oral Testimony ..................................................................................................... 147 

Prepared Statement ............................................................................................. 150 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Committee to Support the Antitrust Laws 

(COSAL) ................................................................................................................ 257 

(1) 

OPEN ACCESS TO COURTS ACT OF 2009 

WEDNESDAY, DECEMBER 16, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS AND

COMPETITION POLICY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:26 p.m., in room 

2237, Rayburn House Office Building, the Honorable Henry C. 

‘‘Hank’’ Johnson, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Johnson, Conyers, Coble, and Goodlatte. 

Staff present: (Majority) Christal Sheppard, Subcommittee Chief 

Counsel; Elisabeth Stein, Counsel; Rosalind Jackson, Professional 

Staff Member; and (Minority) Paul Taylor, Counsel. 

Mr. JOHNSON. The hearing of the Committee on the Judiciary, 

Subcommittee on Courts and Competition Policy, will now come to 

order. 

And without objection, the Chair will be authorized to declare a 

recess of this hearing. 

I now recognize myself for a short statement. First, I will say 

that a little fire to put out caused me to be detained, and so I want 

to apologize to everyone for not getting this meeting started on 

time. 

And access to the courts and the ability for claims to be heard 

by a judge or jury are fundamental to our system of justice. For 

over 50 years, courts have used the Conley standard to ensure that 

plaintiffs had the opportunity to present their case to a Federal 

judge even when they did not yet have the full set of facts. 

The court in Conley set a relatively low bar that is, effectively, 

a non-plausibility standard. Only if the plaintiff could prove no set 

of facts in support of his or her claim would he or she fail to survive a 12(b)(6) motion to dismiss. 

And in Twombly, a Section 1 antitrust case, the Supreme Court 

revised the Conley standard to require, ‘‘plausible grounds’’ which 

provide enough facts to raise a reasonable expectation that discovery will reveal evidence of an illegal agreement. 

However, it was not clear whether the court intended for the 

standard—this standard to apply only to antitrust cases. In its 

Iqbal decision, the court clarified that the plausibility standard not 

only applies to antitrust cases but to all civil cases. 

2 

Further, the court clarified that plausibility—‘‘Plausibility is a 

context-specific task that requires the reviewing court to draw on 

its judicial experience and common sense.’’ 

One critic of this decision commented that this is a subjective 

standard and it could prove devastating to civil rights cases. 

What we have effectively seen is a gradual ratcheting up of the 

standard that plaintiffs must plead to survive a motion to dismiss. 

This raises several concerns in my mind, and I am particularly concerned that those who need it most will be denied access to the 

courts under Iqbal, under the pleading standard. 

As Chairman of this Subcommittee, I believe it is extremely important that plaintiffs be able to survive an initial motion to dismiss when the facts in question can only be answered by information completely in the hands of the defendant alone. 

In discrimination cases, including gender, race and employment 

discrimination, it is frequently only through the discovery process 

that plaintiffs are able to identify non-public information that 

would support their claims. 

Initial studies have indicated that dismissals have increased as 

much as 10 percent in the 7 months since the court decided Iqbal. 

In fact, we already know that employment discrimination claims, 

which the Supreme Court held were explicitly not subject to a 

heightened pleading standard in Swierkiewicz, are now subject to 

the plausibility standard. 

I am also concerned that the Supreme Court may inadvertently— 

may have inadvertently subverted the Rules Enabling Act process 

which Congress established and which the Judicial Conference carries out every year. 

The Rules Enabling Act calls for a deliberate process where the 

Judiciary, Congress and the bar can weigh in on potential rule 

changes. 

The court is certainly entitled to change its legal interpretation 

of the Conley pleading standard. However, there is a legitimate argument that such a change in the pleading law ought to be done 

through the Rules Enabling Act process. 

Even members of the Supreme Court have noted that the Iqbal 

decision may have changed the Federal rules. In the words of Justice Ginsberg, the Supreme Court may have ‘‘messed up the Federal rules.’’ 

The proposed legislation, H.R. 4115, that we are considering 

today was introduced by Congressman Nadler, Chairman Conyers 

and myself earlier this year. 

And the bill, which is entitled ‘‘Open Access to Courts Act of 

2009,’’ is an attempt to clarify the pleading standard and ensure 

that any plaintiff with a valid claim will have an opportunity for 

discovery. 

I look forward to the testimony from today’s witnesses, the first 

of which is the primary author of the bill, Mr. Jerry Nadler, and 

I look forward to the testimony of the panel when its time comes. 

And I look forward to hearing whether or not you think the proposed legislation will help clarify the state of notice pleading jurisdiction. 

[The bill, H.R. 4115, follows:] 

3 


HR4115-1.eps
4 


HR4115-2.eps
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HR4115-3.eps
6 

Mr. JOHNSON. I now recognize my colleague, Mr. Coble, the distinguished Ranking Member of the Subcommittee, for his opening 

remarks. 

Mr. COBLE. Thank you, Mr. Chairman. 

Mr. Chairman, we are here today to discuss proposed legislation 

H.R. 4115 that would overturn the Supreme Court’s decision in 

Iqbal v. Ashcroft. In that decision, decided last May, the Supreme 

Court held that a lawsuit could only go forward if a plaintiff has 

a plausible claim, which the court defined as ‘‘factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’’ 

In so holding the Supreme Court reaffirmed the longstanding 

principle that a lawsuit based solely upon the bald and conclusory 

assertions should not proceed to the discovery stage of litigation. 

The Supreme Court in Iqbal, Mr. Chairman, dismissed the lawsuit on the ground that a terrorism detainee’s complaint failed to 

plead sufficient facts to state an intentional discrimination claim 

against government officials, including the director of the FBI and 

the attorney general. 

Mr. Iqbal was arrested in the United States on criminal charges 

and detained by Federal officials after the September 11 terrorist 

attacks. He pleaded guilty to the criminal charges, served time in 

prison and was removed to his native Pakistan. 

But then he indiscriminately sued high-level government officials, arguing that they were somehow responsible for allegedly 

tough treatment he received while in prison. The issue in this case 

was whether Mr. Iqbal had alleged claims against the Federal officials that were reasonably specific enough to allow the case to proceed. 

The Supreme Court held he had not, stating as follows: The 

pleading standard, Federal Rule 8, analysis does not require detailed factual allegations, but it demands more than an unadorned 

the—defendant-unlawfully-harmed-me accusation. 

A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a 

complaint suffice if it tenders naked assertions devoid of further 

factual enhancement. 

The best evidence indicates that Iqbal decision was simply a reiteration of well-settled case law and consequently the Federal courts 

have continued to allow plausible claims to go forward while dismissing factually baseless claims. 

The most comprehensive study to date of how the Federal courts 

have applied the Iqbal decision is currently being performed by the 

Advisory Committee on Civil Rules within the Judicial Conference 

of the United States, which is chaired by United States District 

Court Judge Mark Kravitz. 

An advisory committee memo recently explained that at this 

early stage of the development of the case law discussing and applying the Iqbal pleading, standards—the Iqbal pleading standards, it is difficult to draw many generalized conclusions as to how 

the courts are interpreting and applying that decision. 

Overall, the memorandum concludes the case law does not appear to indicate a major change in the standards used to evaluate 

7 

the sufficiency of complaints. The Iqbal decision has certainly not 

led to a wholesale dismissal of lawsuits. 

A recently released letter from the Judicial Conference states 

that the official research body of the Federal courts conducted an 

empirical review of the 94 Federal court dockets, comparing the 

granting of motions to dismiss before and after the Iqbal decision. 

The data shows that the Iqbal decision has not resulted in an increase in the dismissal of civil rights suits. 

Indeed, courts have continued to deny motions to dismiss in 

cases involving claims against government officials for actions undertaken in defending the country against terrorist attack as well 

as in the cases involving commercial claims. Likewise, complaints 

alleging civil rights claims have survived motions to dismiss. 

In sum, all the evidence to date indicates it would be premature 

at best for the Congress to statutorily disrupt the court’s reasonable application of longstanding precedents. These precedents go 

back many decades, Mr. Chairman. 

As early as 1972, the Second Circuit explained that even under 

the liberal Federal Rules of Civil Procedure, a bare-bones statement of conspiracy or an injury without any supporting facts permits dismissal. 

In reviewing the sufficiency of a constitutional claim in 1968, the 

Supreme Court held that for the purposes of this motion to dismiss 

we are not bound to accept as true a legal conclusion couched as 

a factual allegation. 

Dozens of lower court decisions applied the same standard, refusing to credit a complaint’s bald assertions, unsupported conclusions, unwarranted inferences or the like when deciding a motion 

to dismiss for failure to state a claim. 

Further, even if some of the lower courts conclude that some lawsuits can’t pass muster, courts continue to have the power under 

the Federal Rules of Civil Procedure to permit plaintiffs to amend 

their complaints. 

Courts continue to allow plaintiffs the opportunity to amend 

their complaints to provide more specifics and to re-file their cases 

in a way that allows them to proceed. 

Finally, courts can and should continue to perform an essential 

gatekeeping function. They have a responsibility to ensure that the 

courts are not overwhelmed with frivolous cases and that defendants are not hauled into court on a whim. 

The Federal courts themselves have not indicated they are having problems applying the Iqbal decision as it was nothing more 

than a reaffirmation of longstanding case law. 

I have an open mind on this topic, Mr. Chairman, although I am 

not embracing it warmly, as you can tell by my statement. 

But unless and until the Federal courts themselves indicate 

there is a reason for Congress to intervene, there is much reason 

to believe that any statutory amendments to the existing rule could 

very likely do more harm than good. 

And I thank you again, Mr. Chairman, for having called this 

hearing. 

Thank the panelists for appearing. 

And I yield back my time. 

Mr. JOHNSON. Thank you, Congressman Coble. 

8 

I will, in response, say that I am happy that you have an open 

mind on this issue, as I do, but I will tell you that the issue of pretrial discovery is important to litigants because it—much of it puts 

people under oath and there is an opportunity to learn the real 

truth and thus amend the pleadings, as opposed to going through 

this nebulous standard which the Supreme Court has imposed. 

I thank the gentleman for his statement, and I now recognize 

Mr. John Conyers, a distinguished Member of this Subcommittee 

and also the Chairman of the Committee on Judiciary. 

Mr. CONYERS. Thank you, Chairman Johnson. 

Could we offer a series of condolences for Committee Chairman 

Nadler, who has been forced to sit through our lectures to him and 

the audience? Normally he is on this side of the hearing process, 

and he gives lectures himself. 

And now he has to receive them before he can make his statement. I don’t know if that is justice—retributable justice, or if it 

is unfair or what, Jerry, but—— 

Mr. NADLER. Turnabout is always fair play. 

Mr. CONYERS. Well, it looks like that is what might be happening 

this afternoon. 

But I am proud to join with Chairman Nadler and Chairman 

Johnson in trying to examine this whole question of access to the 

courts, and that is really what we are here to examine today. 

And it seems to turn mostly around the Supreme Court decisions 

of Bell Atlantic v. Twombly and the other case of Ashcroft v. Iqbal. 

And what we are trying to do is deal with a phenomenon that 

has been noted in The Nation magazine by Herman Schwartz, September 30 of this year, 2009, in which this distinguished lawyer 

and professor had published an article entitled ‘‘The Supreme 

Court Slams the Door.’’ 

And I just want you to hear these two sentences. The Supreme 

Court ruling—and also ask unanimous consent that it be included 

in the record. 

[The information referred to follows:] 

9 


A-1.eps
10 


A-2.eps
11 

Mr. CONYERS. The Supreme Court ruling in May, Ashcroft v. 

Iqbal, on how much information civil complaints in a lawsuit must 

contain, might seem a narrow technical matter of interest only to 

lawyers and law journals. Yet it is on just such technicalities that 

the legal rights of victims of public or private wrongdoings often 

hang. For almost four decades, the court’s right wing has been perfecting such technicalities as legal weapons to deny Americans an 

opportunity to enforce their rights in court. 

And they go on to point out, as I do in the rest of my statement, 

that there are a couple of classes of litigants that could be very 


A-3.eps
12 

negatively impacted. And the first that come to mind is the fact 

that there will be a number of civil rights and civil liberties cases 

that could be negatively affected. 

And the claim of weeding out non-meritorious claims sounds 

quite appropriate, but sometimes these decisions may throw out 

the baby with the bath water. 

Studies have shown that the dismissal rules are up quite a bit, 

and that the protection of civil rights is—and this always normally 

ends up in Federal court—is essential. And the Supreme Court is 

now, through cleverly narrowing the rules of procedure, making it 

harder and harder for those kinds of cases to find their way into 

court. 

And what we have is studies that show that these dismissals 

under 12(b)(6) are up 10 percent. Behind these statistics are numbers, countless numbers, of people who have suffered an injustice 

and are unable, therefore, to seek redress in court. 

Now, some believe that these dismissals are higher for cases involving race, gender and employment discrimination. And it is 

often difficult to secure evidence that the—that demonstrates discrimination without first going through discovery. And if you can’t 

get through discovery, you never can get the case into court in the 

first instance. 

And so it seems that under these new standards, plaintiffs may 

often be locked out of the courthouse unless they can present a sort 

of smoking gun that shows that there is clear evidence of discrimination before you get to the case. 

I can see some—well, some say it is unintentional. Some say it 

is deliberate. But in essence, the plaintiffs have to prove their case 

before they have a chance to gather the evidence to prove their 

claims. And this is not a very good picture. 

And finally, the Rules Enabling Act provides a procedure for 

making changes as significant as elevating the pleading statement. 

While the Supreme Court does have the power to reverse their 

prior interpretation, it seems more proper to call upon the collective experience of bench and bar to develop these sweeping and significant changes in the pleading standard. 

And so this is an important hearing. It is not just for lawyers 

alone. And I am glad that Chairman Nadler has been able to go 

through this without too much encroachment. I hope the Chair will 

give him as much time as he needs to make the case for our bill. 

And thank you very much, Chairman Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Congressman Nadler, your ordeal will be over with shortly. 

And I want to thank—well, I want to now recognize Mr. Bob 

Goodlatte out of Virginia for his opening statement. 

Mr. GOODLATTE. Well, thank you, Mr. Chairman. And, Mr. 

Chairman, I appreciate the opportunity to offer some comments on 

this. 

I think that all of us here would agree, including you, and Chairman Conyers and Chairman Nadler as well, that if this involved 

a criminal investigation that we would require that somebody, before they got a search warrant of somebody’s home, to allege some 

facts, some foundation, for obtaining that search warrant. 

13 

So when the Supreme Court in two cases now says that there 

should be a similar standard before a plaintiff can begin the process of searching somebody through their documents and their depositions, and questioning their family members and friends and employees, or whoever the people that may have discoverable evidence 

in a matter can proceed, that they have to allege some facts, some 

foundation, for doing so, seems to me to be very reasonable. 

And H.R. 4115, the ‘‘Open Access to Courts Act of 4009,’’ is an 

economic stimulus package for trial lawyers. This legislation removes any certainty that currently exists with regard to the legal 

standard for determining whether a complaint’s allegations are sufficient to survive a motion to dismiss. 

Incredibly, this legislation literally states that a court shall not 

dismiss a complaint when a judge believes the facts alleged do not 

show the claims to be plausible. 

Similarly, a judge may not dismiss a claim when he believes that 

the facts are insufficient to warrant a reasonable inference that the 

defendant is liable for the misconduct alleged. This would overturn 

Federal rules and decades of precedent governing pleading standards. 

The confusion created by this legislation would cause a huge 

flood of claims filed by plaintiffs because now, rather than presenting a factual pleading that shows some plausible way the defendant could be liable, plaintiffs need only a wild allegation and 

then enjoy access to discovery to try to prove their theory. 

The bill’s literal text binds the hands of judges from throwing 

cases out that are blatantly frivolous. The result is that defendants 

of all stripes will be forced to open up their wallets to foot the bill 

for discovery costs and attorneys’ fees to defend even the most ridiculous claims. 

In addition, the bill would overturn any standards that Congress 

has previously passed relating to the required substance of complaints. The text explains that the provisions of H.R. 4115 would 

trump everything other than acts of Congress passed after the effective date of the bill. 

America’s small businesses are hurting. They are not receiving 

capital from banks because banks are being forced to invest in the 

most risk-averse assets like Treasury securities, which happen to 

fund the debt accumulated from big government spending. 

They are facing uncertainty about massive new taxes on energy 

and health care as well as penalties for those businesses that cannot afford to comply with the new regulations in these areas. 

And now we are going to eliminate the very standards that protect them from extremely expensive frivolous lawsuits. The clear 

message seems to be that Congress does not want these small businesses to succeed or to create new jobs. 

Mr. Chairman, it is getting close to Christmas, but American citizens and businesses cannot afford to pay for the gift this bill gives 

to the trial lawyers this year. Indeed, it is the gift that keeps on 

giving. 

And I yield back. 

Mr. JOHNSON. I thank the gentleman for his statement. 

And without objection, other Members’ opening statements will 

be included in the record. 

14 

I am now pleased to introduce our witness on panel one, Representative Jerry Nadler, the distinguished representative from the 

8th District of New York. 

Representative Nadler’s district includes parts of Manhattan and 

Brooklyn, and he is a Member of the Judiciary Committee where 

he chairs the Subcommittee on Constitution, Civil Rights—Constitution, Civil Rights and Civil Liberties. He also serves as the 

most senior northeastern Member of the Committee on Transportation and Infrastructure. 

Mr. Nadler, don’t put us through an ordeal to make us pay. I will 

count on Chairman Conyers to rule your time has expired. But 

please proceed with your statement, sir. 

TESTIMONY OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW 

YORK 

Mr. NADLER. Thank you, Chairman Johnson, Chairman Conyers, 

Ranking Member Coble, other distinguished Members of the Subcommittee. 

Thank you for holding today’s hearing on H.R. 4115, the ‘‘Open 

Access to Courts Act of 2009’’, which I introduced with Chairman 

Johnson and Chairman Conyers on November 19th. 

The Supreme Court’s decision in Ashcroft v. Iqbal was the subject of a hearing I chaired in the Subcommittee on the Constitution, Civil Rights, and Civil Liberties on October 26 entitled ‘‘Access to Justice Denied: 

Ashcroft v. Iqbal.’’ 

It is the legislative response to that hearing’s findings that bring 

us here today. What is really significant about the Iqbal decision 

is that it sets up a very stringent new standard that prevents people from having their day in court. 

It does so not based on the evidence or on the law but on the 

judge’s own subjective criteria. Rights without remedies are no 

rights at all. That is an ancient legal maxim. 

All Americans are entitled to have access to the courts so that 

their claims can be heard, the evidence weighed, and their rights 

can be vindicated. Without recourse to the courts, our rights are 

merely words on paper. 

In Iqbal, the court established a new test that Federal judges 

must use when ascertaining whether civil complaints will withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules 

of Civil Procedure. 

Rather than questioning, as required under Rule 8(a)(2), only 

that the plaintiff had included ‘‘a short and plain statement of the 

claim showing that the pleader is entitled to relief,’’ it dismissed 

the case not on the merits or on the law but on the bald assertion 

that the claim was not plausible. 

In the past, the rule had been, as the Supreme Court stated in 

Conley v. Gibson, that the pleading rules exist to ‘‘give the defendant fair notice of what the claim is and the grounds upon which 

it rests,’’ not as a substantive bar to consideration of the case. 

Now the court has required, in effect, that the pleading serve as 

a substantive bar to the consideration of the case by requiring that 

prior to discovery, courts must somehow assess the plausibility of 

15 

the claim, dismissing claims the court finds not plausible—before 

discovery and without submission of evidence. 

This rule will reward defendants who succeed in concealing evidence of wrongdoing, since claims will be dismissed before discovery can proceed, whether it is government officials who violate 

people’s rights, polluters who poison the drinking water or employers who engage in blatant discrimination. 

Often, evidence of wrongdoing is in the hands of the defendants, 

and the facts necessary to prove a valid claim can only be 

ascertained through discovery. 

The Iqbal decision overturned—and some of the statements of 

the last few minutes assume that—or asserted that my bill would 

establish a new requirement, a new standard. In fact, it will simply 

reassert the standard that existed for 50 years until the Iqbal decision. 

The Iqbal decision has overturned 50 years of precedent and will 

effectively slam shut the courthouse door on legitimate plaintiffs 

based on the judge’s subjective take on the plausibility of a claim 

rather than the—on the actual evidence. 

At our hearing on Ashcroft v. Iqbal, we heard compelling testimony from the witnesses that the Iqbal decision has resulted in the 

substantial departure from previously well-settled practice in civil 

litigation. 

Several witnesses said the new standard put forward by the Supreme Court to decide a motion to dismiss a civil complaint 

amounts to a heightened pleading standard. 

Professor Arthur Miller of New York University School of Law, 

an expert on civil procedure, testified that ‘‘what we have now is 

a far different model of civil procedure than the original design.’’ 

We also heard from seasoned litigators. John Vail of the Center 

for Constitutional Litigation stated that there is ‘‘no doubt that the 

Supreme Court intended a sea change in pleading law.’’ 

Debo Adegbile of the NAACP Legal Defense Fund referred to the 

Iqbal decision as a ‘‘judicially heightened pleading barrier erected 

by the Supreme Court.’’ 

These three witnesses agreed that a legislative response like 

H.R. 4115, the ‘‘Open Access to Courts Act of 2009,’’ is very necessary. 

In addition to our witnesses, a diverse coalition of 36 civil rights, 

consumer, environmental and other organizations support a legislative response to 

Ashcroft v. Iqbal. 

Mr. Chairman, I ask that a copy of their letter be included in the 

record following my testimony. 

Mr. JOHNSON. Without objection. 

Mr. NADLER. Thank you, Mr. Chairman. 

H.R. 4115 would restore the notice pleading standard that existed prior to Ashcroft v. Iqbal, a standard that was articulated 

over 50 years ago in Conley v. Gibson. Notice it would not establish 

a brand new standing, opening the courthouse doors to all sorts of 

frivolous claims. It would reestablish the pleading standard that 

existed for 50 years prior to Ashcroft. 

Using the language in Conley, the Open Court—Access to Courts 

Act provides that a complaint under Rule 12(b)(6)(c) or (e) cannot 

16 

be denied ‘‘unless it appears beyond doubt that the plaintiff can 

prove no set of facts in support of the claim that would entitle the 

plaintiff to relief.’’ That is not language that I invented. That is 

language from the Conley decision of roughly 50 years ago. 

That was the correct and workable standard for a half-century. 

It is well understood and practical. The Open Access to Courts Act 

would simply restore that time-tested standard. 

Mr. Chairman, this Supreme Court seems to be engaged on a 

crusade to deny access to the courts increasingly to litigants of all 

sorts by tightening and redefining the standing standards—and 

that is a constitutional doctrine we can’t correct—and by redefining 

and amending through court ruling the rules of civil procedure, a 

change we can correct and should by passing this bill. 

Again, I thank you, Mr. Chairman, for holding today’s hearing 

and for your leadership on this issue. I look forward to working 

with you and with the other Members of the Subcommittee and the 

full Committee to restore the rights of all Americans to a day in 

court by enacting H.R. 4115, the ‘‘Open Access to Courts Act of 

2009.’’ 

Thank you, and I yield back the balance of my time. 

[The prepared statement of Mr. Nadler follows:] 

17 

PREPARED STATEMENT OF THE HONORABLE JERROLD NADLER, 

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK


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ATTACHMENT 


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Mr. JOHNSON. Thank you, Congressman Nadler. 

And I am pleased to—we will call this hearing, this part of the 

hearing, to a halt, allowing the full ordeal to be over, Mr. Congressman. 


JN-5.eps
22 

And then we will call up our second panel. Thank you. 

And by the way, he is one of the brightest guys in Congress, and 

also long-winded. [Laughter.] 

Okay, this is the second panel of this very important hearing. 

And I want to first start by introducing the people who are serving 

on this Committee, and I also want to thank all of you all for serving on this Committee as well. 

The first witness is Professor Eric Schnapper. Professor 

Schnapper is a professor of law at the University of Washington 

School of Law where he is an expert in employment discrimination 

law, equal protection and civil rights. 

He previously worked as assistant counsel at the NAACP Legal 

Defense and Education Fund. 

Welcome, Professor Schnapper. 

The next witness will be Mr. Gregory Katsas. Mr. Katsas was the 

former assistant attorney general for the Civil Division of the U.S. 

Department of Justice. In his work at the U.S. Department of Justice, Mr. Katsas argued or supervised most of the leading civil appeals brought by the U.S. government between 2001 and 2009. 

Mr. Katsas was directly involved in defending Attorney General 

Ashcroft and FBI Director Robert Mueller in the Iqbal litigation. 

Welcome, Mr. Katsas. 

Next, we will hear from Jonathan Rubin. Mr. Rubin is a partner 

at Patton Boggs LLP in Washington, DC. He practices all facets of 

antitrust law, including litigation, mergers and acquisitions, counsel in compliance and public policy. 

Mr. Rubin is the author of ‘‘Twombly and its Children,’’ which 

was recently presented to the American Antitrust Institute. 

Welcome, Mr. Rubin. 

And last but certainly not least, we will hear from Professor 

Joshua Davis. Professor Davis is the director of the Center for Law 

and Ethics at the University of San Francisco School of Law. He 

also teaches civil procedure, remedies, legal ethics, constitutional 

theory and First Amendment law. 

I tell you, those law students might hit you for more than three 

or four classes, so I would advise them to be quite nice to you, sir. 

And Professor Davis is a member of the advisory board of the 

American Antitrust Institute. 

We want to welcome you to the panel and to this hearing. 

Without objection, your written statements will be placed into 

the record, and we would ask that you limit your oral argument— 

or your oral remarks to 5 minutes. 

You will note that we have a lighting system that starts with a 

green light. At 4 minutes it turns yellow, then red at 5 minutes. 

After each witness has presented his or her testimony, Subcommittee Members will be permitted to ask questions subject to 

the 5-minute limit. 

Professor Schnapper, will you please proceed with your statement, sir? 

Mr. SCHNAPPER. [Off mike.] 

Mr. JOHNSON. Thank you, Professor. And is that green button— 

okay, it is a green button. 

Mr. SCHNAPPER. Oh, but it is light green. Now it is a dark green. 

Mr. JOHNSON. All right. Okay. All right, thank you. 

23 

TESTIMONY OF ERIC SCHNAPPER, PROFESSOR OF LAW, 

UNIVERSITY OF WASHINGTON, SCHOOL OF LAW, SEATTLE, WA 

Mr. SCHNAPPER. The decisions in these cases, particularly Iqbal, present a serious obstacle to the enforcement of Federal laws which 

forbid actions because they are the result of an unlawful purpose. 

Most civil rights cases today involve claims of an unlawful but 

secret motive. Iqbal makes those cases much more difficult to pursue. It requires that the plaintiff have enough evidence before the 

lawsuit starts to convince a judge that his or her claims are plausible. 

Mr. Coble raised a question—Congressman Coble raised a question of whether that might be consistent with laws going back 

many decades. I personally go back many decades, and I—— 

Mr. COBLE. [Off mike.] 

Mr. SCHNAPPER. I wouldn’t have guessed. 

And I can assure you, this is not the legal system on which we 

were practicing for the year—the many years that I have been handling these cases in court. 

I have set out in my written statement a number of lower court 

decisions I think correctly describing what the new set of standards 

under Iqbal as new, and I could provide with a substantial number 

of others. 

Congressman Goodlatte expressed the concern—and I think it 

was an entirely legitimate question—about what the consequences 

of this bill would be, and I think it is always appropriate for Congress to be concerned about that. 

But the legal regime that the bill would establish is the legal regime that has been in place for four decades. We have got years 

of experience with it. And it just hasn’t had the kind of concerns 

that have been expressed. 

Mr. Chairman, your point was exactly correct when you noted 

that in civil rights cases it is usually essential to be able to have 

access to discovery in order to prove claims of discrimination. 

In most cases, the most telling evidence—sometimes almost all 

the evidence—only comes out in the course of discovery. And that 

is true of employment discrimination cases under Title 7, the ADA, 

the Age Discrimination in Employment Act. 

The effect of Iqbal is the equivalent of writing an exemption for 

good liars into the statutes, because if defendant does a good job 

of covering his or her tracks, it is going to be very difficult to meet 

the standard. 

That intent standard isn’t limited to employment discrimination 

cases. It also applies to retaliation and whistleblower statutes. 

There are many antiretaliation provisions in Federal discrimination laws, but it is—they are present in many other laws such as 

Sarbanes-Oxley. And constitutional claims involving free speech or 

equal protection also require proof of secret motives. 

What we will be reliably left with as viable claims are going to 

be primarily claims involving fairly inept discriminators, people 

who blurt out their motives or do a very bad job of covering their 

tracks. 

And my brother Mr. Katsas has a list of a number of cases which 

have survived Twombly and Iqbal. I only had a chance to look at 

the list he had in his previous testimony. But they are exactly 

24 

those kinds of cases, discriminatory officials who make avowedly 

discriminatory remarks directly to the plaintiff at the time, and 

those simply aren’t typical cases. 

Congressman Coble, you expressed a concern to perhaps defer action until the courts themselves were indicating a concern about 

what is happening in the law. 

That concern is out there, and I quote one of those cases in my 

prepared statement from the Ocasio-Hernandez case where the 

judge applies the law as he understands it and dismisses a case 

and then, frankly, says that as the standard he has being forced 

to apply is draconian and that it is requiring proof of a smoking 

gun, and the vast majority of plaintiffs in discrimination cases just 

aren’t going to have that. 

There are concerns, and I understand them, that this may be— 

this imposes a burden on plaintiffs—on defendants. I have to point 

out to the Committee that when this same standard has been applied to defendants, or when plaintiffs have tried to apply the 

standard to defendants, because defendants have to file pleadings 

too, the defendants have vehemently objected to that. 

The standard that defendants have asked be applied to defendant pleadings is notice pleading. And I think they are right. But 

I think sauce for the goose should be sauce for the gander. But defendants don’t like this rule at all when it is applied to them, only 

when it is applied to plaintiffs. 

So there—— 

Mr. JOHNSON. If you could wrap up, please, Professor Schnapper. 

You are almost at the end of your time. 

Mr. SCHNAPPER. I am happy to end here. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Schnapper follows:] 

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PREPARED STATEMENT OF ERIC SCHNAPPER


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Mr. JOHNSON. Thank you, sir. 

And, Mr. Katsas, would you please begin your testimony? 


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TESTIMONY OF GREGORY G. KATSAS, FORMER ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF 

JUSTICE, WASHINGTON, DC 

Mr. KATSAS. Chairman Johnson, Ranking Member Coble, Members of the Subcommittee, thank you for the opportunity to testify 

about whether Congress should overrule the Supreme Court’s recent decisions in Twombly and Iqbal. 

For many reasons, I believe that it should not. As explained in 

my written testimony, Twombly and Iqbal are consistent with decades of prior precedent. In essence, those cases hold that conclusory 

and implausible claims should not proceed to discovery. 

That conclusion follows from settled principles of black letter law 

that courts, even on a motion to dismiss, are not bound to accept 

conclusory allegations or to draw unreasonable inferences from the 

specific allegations actually made, and also that discovery is not 

appropriate for fishing expeditions. Dozens, if not hundreds, of 

cases support those basic propositions. 

Twombly and Iqbal also protect government officials from being 

subjected to baseless litigation and a threat of personal liability 

simply for doing their jobs. 

Those cases reinforce the doctrine of qualified immunity which 

protects government officials from burdensome pretrial civil discovery described by the Supreme Court as peculiarly disruptive of 

effective government. 

Such disruption is most apparently where, as in the Iqbal case 

itself, the litigation is conducted against high-ranking officials and 

involves conduct undertaken during a war or other national security emergency. 

Imagine the paralyzing effect if any of the thousands of detainees 

currently held abroad by our military could seek damages and discovery from the secretary of defense merely by alleging in a complaint that the detention was motivated by religious animus in 

which the secretary was complicit. 

That astounding result is exactly what Iqbal forecloses. Overruling that decision would, in the words of Second Circuit Judge 

Cabranes, provide a blueprint for terrorists and others to sue those 

government officials called upon to prosecute two ongoing wars 

abroad and to defend the Nation at home. 

In less dramatic contexts as well, Twombly and Iqbal prevent— 

protect defendants from being unfairly subjected to the burdens of 

discovery in cases likely devoid of merit. That is no small consideration. Discovery is almost always expensive, and electronic discovery costs alone can easily run into the millions of dollars in complex cases. 

Defendants cannot recover their discovery costs, even if the 

plaintiff’s case turns out to be meritless. So if weak cases are routinely allowed to proceed to discovery, defendants would have no 

choice but to settle rather than incur the substantial and non-reimbursable discovery costs. 

Twombly and Iqbal have not prevented the pursuit of meritorious claims. In fact, according to data compiled by the Civil 

Rules Committee of the Judicial Conference, data that encompasses 

hundreds of thousands of cases filed between January 2007 and 

66 

September 2009, Twombly and Iqbal have had at most a negligible 

impact on how the Federal courts adjudicate motions to dismiss. 

Moreover, a 150-page memorandum prepared for the committee 

after exhaustively reviewing dozens of lower court opinions that 

discuss Twombly and Iqbal concluded that overall the case law 

does not appear to indicate a major change in the standards used 

to evaluate complaints. 

Judge Mark Kravitz, who chairs the committee, likewise has concluded that courts are taking a nuanced view of Twombly and Iqbal 

and that neither decision has proven to be a blockbuster. 

Individual decisions confirm that, in the words of the Seventh 

Circuit, Twombly and Iqbal preserve a liberal notice pleading regime. 

In sum, conclusory and implausible claims have always been subject to dismissal on the pleadings. Congress should not enact what 

would be a wrenching departure from that fundamental and critically important principle. 

Thank you. 

[The prepared statement of Mr. Katsas follows:] 

67 

PREPARED STATEMENT OF GREGORY G. KATSAS


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Mr. JOHNSON. Thank you, Mr. Katsas. 

I think it is appropriate now, because we are just—you just 

called for votes, is that right? Okay. 

I think it is appropriate, so that Professor Davis would not feel 

abandoned and left out, that he have Mr. Rubin to do his statement along with you. And so I think it is good for us to break here, 

go vote. That is going to take, I would say, 40 minutes—30 to 40 

minutes. 

And so if you all could stay with us, we would greatly appreciate 

it. This hearing is now in recess. 

[Recess.] 

Mr. JOHNSON. Mr. Rubin? 

TESTIMONY OF JONATHAN L. RUBIN, PATTON BOGGS, LLP, 

WASHINGTON, DC 

Mr. RUBIN. Thank you, Mr. Chairman. 

Chairman Johnson, Ranking Member Coble, Members of the 

Subcommittee, thank you for the opportunity to testify today about 

H.R. 4115, the ‘‘Open Access to Courts Act of 2009’’ and the Supreme Court’s recent decisions in Bell Atlantic v. Twombly and 

Ashcroft v. Iqbal. 

My name is Jonathan Rubin, and I am a practicing attorney here 

in Washington, D.C., where I practice antitrust law. I have written 

scholarly articles and given lectures about the interpretation and 

application of the Twombly standard in practice. 

I appear today as an individual and not in any capacity representing my law firm or any of its clients, so the views I express 

are solely my own. 

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires civil 

pleadings to contain a short and plain statement of the claims 

showing that the pleader is entitled to relief. 

In the 1957 case of Conley v. Gibson, the Supreme Court interpreted these words to mean that civil cases should not be dismissed 

unless it appears beyond doubt that the plaintiff can prove no set 

of facts in support of his claim which would entitle him to relief. 

Under the Conley standard, courts were directed not to dismiss 

a claim unless it is implausible—that is, unless no set of facts could 

support it. 

In Twombly, the court overruled the Conley no-set-of-facts test 

for what Rule 8 requires, imposing a new, stricter interpretation 

for what constitutes an adequate statement of a plaintiff’s entitlement to seek relief. 

Civil pleadings must now set forth a particular factual narrative 

supporting liability, and courts must disregard conclusory or factually neutral allegations not pleaded in a sufficiently suggestive factual context. 

This new and nuanced standard does not affect all pleadings, but 

it does eliminate meritorious claims presented in pleadings that allege facts consistent with liability but unable to satisfy the stricter 

requirements of the new standard. 

Significantly, the cases that cannot be pleaded to Twombly 

standards are generally those in which the plaintiff lacks essential 

information about the defendant’s wrongful acts. 

111 

This is likely to occur in factually complex cases, in cases involving abstract economic or financial subject matter, and in cases such 

as a conspiracy or discrimination in which the culpable conduct is 

committed in private or under a cloak of secrecy. 

These cases include antitrust conspiracy, fraudulent financial 

schemes, employment discrimination, civil rights violations and 

other substantive areas of the law in which private enforcement, in 

addition to compensating the immediate victim of actionable conduct, is particularly useful in remediating public wrongs, promoting 

sound public policy and deterring similar wrongdoing by others. 

The principal undesirable effect of the Twombly pleading standard, therefore, is to impair the contribution of private enforcement 

to the regulation of business, governmental and other conduct affecting the public interest. 

The Twombly standard disproportionately penalizes private civil 

cases most likely to generate positive public externality. 

While the investigatory function of private enforcement can be 

restored by enacting legislation designed to reinstate the preTwombly civil pleading standard, such as the Open Access to 

Courts Act of 2009, capturing the pre-Twombly standard could be 

a challenging legislative task because it rests on a more fulsome jurisprudence beyond Conley v. Gibson. 

In my view, Congress should decline to engage directly in writing 

or interpreting the Federal Rules of Civil Procedure. As an alternative, the erosion of the investigatory function of Federal civil litigation due to Twombly could be mitigated by a statutory option 

granted to a plaintiff in lieu of dismissal with prejudice on 

Twombly grounds to proceed to targeted discovery followed by the 

filing of an amended pleading and post-discovery re-review. 

Such proceedings in aid of pleading would substantially alleviate 

the problem of placing a judicial remedy out of the reach of cases 

based on a well-founded suspicion of wrongdoing but where the allegations cannot be pleaded to the satisfaction of the Twombly 

plausibility standard. 

At the same time, such an option would retain the advantages 

engendered by Twombly’s enhanced and more disciplined standards 

of pleading. 

I thank the Committee for its attention and for the opportunity 

to share my views on this important subject. I have submitted a 

recent paper on Twombly and would ask that it be introduced as 

part of my written statement. And I look forward to answering 

your questions. 

[The prepared statement of Mr. Rubin follows:] 

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PREPARED STATEMENT OF JONATHAN L. RUBIN


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Mr. JOHNSON. Thank you, sir. 

And now we will hear from Professor Davis. 

TESTIMONY OF JOSHUA P. DAVIS, PROFESSOR, CENTER FOR 

LAW AND ETHICS, UNIVERSITY OF SAN FRANCISCO, SCHOOL 

OF LAW, SAN FRANCISCO, CA 

Mr. DAVIS. My name is Josh Davis. I am a professor at the University of San Francisco School of Law. My teaching is largely in 

civil procedure and somewhat in complex litigation and antitrust 

law. I have some practical experience there as well. 

And I want to thank you sincerely for the honor and the privilege 

of presenting testimony today. 

Twombly and Iqbal do very substantially undermine private enforcement of the law generally and private enforcement in antitrust 

in particular. So very briefly, in the time allotted to me, I want to 

make a handful of points. 

I want to emphasize the importance of the antitrust laws. I want 

to emphasize the importance of private enforcement of the antitrust laws. And I want to express some concerns about Twombly 

and Iqbal which can be summarized as—that they are an attempt 

to make a change in the law to fix a problem that probably doesn’t 

exist, that engendered great cost and inefficiency, and gives rise to 

significant problems of political illegitimacy. 

So first, as to the importance of antitrust law, antitrust violations are a little bit like steroids in sports. When you violate the 

antitrust laws, cheaters win, consumers lose, and honest competitors, including small businesses, are at a terrible disadvantage. 

But antitrust law is far more important. And in particular, in 

Exhibit A to my written testimony, I have co-authored an article, 

and that article demonstrates that since 1990 plaintiffs in private 

antitrust cases have recovered many hundreds of millions of dollars, almost a billion dollars, alone from the pharmaceutical industry. 

And in a day and age when everyday citizens are having to 

choose between paying for their medication and buying food or paying their rent, that is an issue of the greatest sort. 

Now, as to private enforcement of the antitrust laws, as opposed 

to government enforcement, it is an elegant free market solution to 

a free market problem. 

It is a reflection of American ingenuity, if you will, the genius of 

America, that we would come up with harnessing the power of private action in service of the public good. 

And that same study that I did, the written—attached as Exhibit 

A to my written testimony, shows that private plaintiffs’ lawyers 

perform two key functions, compensation and deterrence. 

As for compensation, cumulatively in just those 40 cases, plaintiffs have recovered—plaintiffs’ lawyers and plaintiffs have recovered over $18 billion as a result of antitrust violations. 

Over 5 billion of those dollars come from foreign actors who were 

preying on the American economy. It is important compensation 

that would not occur in the absence of private enforcement. 

In a separate article that currently is being drafted, attached as 

Exhibit B to my written testimony, I also, with my co-author, established that the deterrence effect of private enforcement in those 

148 

40 cases alone since 1990 is probably significantly greater than the 

deterrence effect of all of the Department of Justice’s excellent efforts in criminal enforcement. So private antitrust enforcement is 

absolutely crucial. 

Now to my three criticisms, very quickly, of Twombly and 

Iqbal—that they are an attempted solution to a problem that probably doesn’t exist, expensive and inefficient, and of questionable legitimacy. 

First of all, Twombly is premised almost entirely as a matter of 

public policy on the speculation that plaintiffs’ lawyers may bring 

cases—plaintiffs may bring cases without any significant merit and 

defendants may settle those cases because of the fear of litigation 

costs. 

The problem with Twombly is it offered absolutely no evidence 

that this is a phenomenon that occurs with any significant frequency at all. And indeed, there isn’t any evidence that I have 

come across anywhere, and I said that in writing. It has been published. It has been out for a couple of years. And nobody has responded otherwise. And so I don’t think there is evidence. 

And it is implausible as a matter of theory once we attend to the 

dynamics of litigation, because the reality is that the defendants in 

these actions are large corporations with substantial resources and 

sophistication. 

They benefit from the delay of litigation. In effect, they get an 

interest-free loan from the plaintiff until they have to pay, so that 

is very valuable to them. 

They also benefit, as do their lawyers, from having a reputation 

of being tough fighters. And then finally, the lawyers are paid by 

the hour, and so protracted litigation is very attractive to them. So 

defendants have every reason to fight hard in this litigation, and 

they do. 

Plaintiffs and plaintiffs’ lawyers, on the other hand, have reason 

to settle on reasonable terms and early. They are small players. 

The plaintiffs are giving an interest-free loan to the defendants so 

they can recover. And the plaintiffs’ lawyers are paid on a purely 

contingent basis. And so what they want to do is settle early, if 

reasonably. 

In terms of costs, the massive change—and it is a massive 

change that we have seen in the pleading standards—is incredibly 

costly for parties to litigate and for courts to try to figure out and 

apply. 

And then in terms of the political legitimacy issues, first of all, 

the Supreme Court made up facts in Twombly. As I said, that is 

a form of activism just like making value judgments that are better 

delegated to the democratic branches. 

Also—and I would be happy in questions to address this at greater length—they didn’t follow the protocol in the—set out in the 

Rules Enabling Act. 

And then, as to the judges themselves, they have been granted 

tremendous discretion under these new pleadings standards. We 

have four panelists here, and I think if you asked us to define 

Twombly and the new standard under Twombly and Iqbal you 

would get five opinions. 

149 

And that gives tremendous discretion for judges to indulge their 

ideology rather than to respond to the merits in deciding any particular case and determining who gets access to justice. 

And therefore, I encourage you to overrule Twombly and Iqbal 

along the lines of H.R. 4115 or some similar legislation. Thank you 

for your time. 

[The prepared statement of Mr. Davis follows:] 

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PREPARED STATEMENT OF JOSHUA P. DAVIS


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Mr. JOHNSON. Thank you, Professor Davis. I wish I could overrule the Supreme Court decision or decisions in Twombly, Iqbal. I have got a question I will recognize myself for. And you know, 

this was a judicial animal the way that it was done for the last 40 

years—I mean, not a judicial animal but a legislative animal. Is 

that correct? 

This standard of the previous standard which was ruled unconstitutional—is that standard still—we have had that—let me just 

drop that question and move on. 

This is a case of kind of legislative ruling from the bench. Is that 

right? In other words, taking out legislation that Congress enacted 

and then changing it for no real good reason? 

Mr. DAVIS. Is that to the panel generally, or—— 

Mr. JOHNSON. Yes, generally. 

Mr. DAVIS. I am happy to take a stab at that. I think that Conley 

is certainly an interpretation of the Federal Rules of Civil Procedure and that the judiciary is bound under the Rules Enabling Act 

by the Federal rules. 

And I do think that within certain parameters the judiciary has 

room to interpret those rules. But I actually think that Twombly 

and Iqbal exceed those bounds. 

And just as an example, to make this concrete, part of the Federal Rules of Civil Procedure under Rule 84 are the forms. And one 

of the forms is what used to be called Form 9 and is now Form 11. 

And what it says—all it says—and this is supposed to be absolutely sufficient—according to the Federal rules, for a complaint, is 

it says on a date to be specified, at a place to be specified, the defendant negligently drove a motor vehicle against the plaintiff. 

Now, that is conclusory. There is no explanation of the negligence. And if you take Twombly and Iqbal literally—now, the 

court says that survives, but it doesn’t really give a very satisfactory explanation as to why. 

If you take Iqbal and Twombly literally, you would say, ‘‘Well, 

negligence—that is a conclusion. There is nothing else other than 

the word negligence to say the defendant did anything wrong.’’ I 

think there is a very good argument that applying Twombly and 

Iqbal literally—that form is no longer good. 

Now, nobody wants to go there, but I think that that is a powerful piece of evidence that in Twombly and Iqbal the Supreme Court 

really didn’t abide by the framework that was enacted pursuant to 

the Rules Enabling Act and it acted in essentially a legislative 

fashion. 

Mr. JOHNSON. The legislating from the bench. I am going to 

move on. 

How does Iqbal—how does it affect the ability of a litigant to go 

to court? I want to ask Mr. Katsas that. 

Mr. KATSAS. Based on the data we have to date, which admittedly cover only a few months, the answer is Iqbal has had essentially zero impact on the ability of litigants. The federal—— 

Mr. JOHNSON. Well, if I might ask, why is it that previous law 

was changed if this is not having much effect on litigants’ ability 

to come into the courthouse and file their pleadings? 

Mr. KATSAS. Because previous law wasn’t changed, Mr. Chairman. Previous law was crystal clear on the propositions I menVerDate Aug 31 2005 16:36 Nov 10, 2010 Jkt 000000 PO 00000 Frm 00249 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\121609\54076.000 HJUD1 PsN: 54076
246 

tioned. Conclusory allegations aren’t good enough, a plaintiff is 

only entitled to the reasonable inferences from the facts pled, discovery is not for fishing expeditions, and so on. 

Mr. JOHNSON. Let me ask Professor Schnapper to respond to it, 

and also Mr. Rubin. 

Mr. SCHNAPPER. Well, with all deference to my colleague, I disagree with both that characterization of what the law was before 

and what its impact has been. 

Certainly, you can see any number of cases—and I have tried to 

identify a number of them in my prepared remarks—which were 

dismissed under the new standard which wouldn’t have been dismissed under the old standard and which the judges said wouldn’t 

have been dismissed under the old standard. 

So it is clearly—it has clearly had an effect. And as I noted earlier, it has had an effect on defendants, because judges have been 

striking affirmative defenses under the Iqbal-Twombly standard, 

and that was not something that would have happened before. 

Mr. JOHNSON. Thank you. 

And, Mr. Rubin? 

Mr. RUBIN. Thank you, Mr. Chairman. I think that the question 

of legislating from the bench is not a rigorous way of looking at it. 

This is not an unusual situation where the Supreme Court interprets, for example, a statute. 

If the interpretation is within the range of the interpretations 

that were envisioned for the statute by Congress, then we say the 

Supreme Court is interpreting. If the Supreme Court goes outside 

of that range, then we say the Supreme Court is legislating from 

the bench. 

In this case, the question is whether or not the Supreme Court 

exceeded in some manner its authority in its more granular and 

more specific interpretation of the pleading requirements set down 

in Rule 8(a)(2). 

Now, I believe that the Supreme Court was probably within its 

rights to interpret the rule as it did. Others may think that that 

is a—such a far-out interpretation that it is essentially legislating 

in the sense that it is changing the essential nature of the rule. 

I think that we don’t have to decide that question to know that 

there is a change, that the change is very clear in the sense that 

the requirements for expressing entitlement to seek relief in a civil 

complaint have been changed, and it is important to see how they 

have been changed. 

They have been changed in a way that only certain cases are 

going to be affected by the change. And as I tried to point out in 

my statement, there is a class of cases which comes up to the edge 

of the Twombly standard but does not, as the court said, go over 

the line into plausibility, and those cases are cases where the 

plaintiff is in the dark with respect to some of the essential ingredients of their claim. 

They can allege facts that are consistent with the claim, but they 

cannot allege facts that get over the line established by Twombly. 

When we are talking about some fix for the problem, I believe this 

is the problem we are talking about, a class of cases that will get— 

which is a minority of cases, or maybe a majority, maybe more 

than 50 percent—I don’t know how many there. 

247 

But we know that there are cases that are unaffected by the 

Twombly standard because it keeps intact most of the existing motion to dismiss standard, but we always—also know that there is 

a class of cases that will be ensnared by Twombly. That is the problem to be addressed. Those cases—— 

Mr. JOHNSON. Those pro se—— 

Mr. RUBIN [continuing]. Did not have a problem before the court 

made its decision. They do have a problem now. 

Mr. JOHNSON. Pro se cases, cases involving unpopular ideas— 

those cases would be adversely impacted. 

Mr. KATSAS. Actually, Mr. Chairman, there is a case called 

Erikson decided between Twombly and Iqbal in which the Supreme 

Court very specifically said that pro se litigants are still entitled 

to the benefit of the doubt in construing their complaint, so I don’t 

think that is right. 

Mr. RUBIN. Well, if I could address that, Mr. Chairman, I think 

that something that gets lost in this debate is that not all cases are 

created equal. There is a class of cases, such as an automobile negligence complaint, which needs only the barest allegations in order 

to make clear what the entitlement of the plaintiff to sue is based 

on. 

Everyone knows that an automobile accident will result—can result in injury to people and property. It is not necessary in a complaint to allege exactly how the injury was caused and the other 

factual details in order to support and to demonstrate the entitlement of the plaintiff to sue. 

And Erikson was also such a case, because in that case the essential allegation was that medical treatment was being denied a 

prisoner, and all of us know from our common experience that 

when medical treatment is denied, injury can result. We do not 

need specific factual allegations in order to support the entitlement 

to sue in such a context. 

Contrast that with a—yes, sir. 

Mr. JOHNSON. So the point that you are making, if you could just 

boil it down—— 

Mr. RUBIN. Well, is that there is a different kind of case that is 

a complicated case, an economic case, a case of discrimination, a 

case of financial shenanigans, where it is not close to our experience what the basis of the entitlement to sue is. 

And in those cases, the Twombly standard will come into effect. 

And in those cases, the court is saying, ‘‘We need additional factual 

enhancements in order to make clear the entitlement to sue.’’ 

So you can’t say that Twombly is somehow inconsistent with 

Rule—pardon me, with Form 9, which is now Form 11. They are 

two different kinds of case, two different worlds, one to which 

Twombly applies and one to which it doesn’t. 

Mr. DAVIS. Oh, sorry. May I say just a word on this? I mean, Mr. 

Rubin has one theory of Twombly, which is a very interesting one, 

and I could respond on the particulars of that issue. 

But I do think the more important point is that fundamentally 

you are right that there is a threat from Twombly to the very 

cases, the very important cases, that you have identified. And the 

reality is that there are lots of ways to construe Twombly and 

Iqbal. 

248 

They have given judges far more room than existed under the old 

system. And so if you get—draw Mr. Rubin as a judge, you may 

get one conclusion. If you draw somebody with a different take on 

Twombly that kind of fits the reasoning in many ways, you get a 

different one. 

And if you get a judge who feels that unpopular views or the 

claims of a pro se litigant are implausible, whatever that means 

based on the good sense of that particular judge, there is a very 

real possibility of dismissal. 

And this is one of the concerns about Twombly and Iqbal, that 

any one of us may come up with our theory of what it—what they 

mean, but there is an awful lot of room that will vary by the judge. 

And Mr. Rubin is putting forth one very insightful, well-reasoned 

possibility that has to compete with all the others that judges may 

apply in any given case. 

Mr. JOHNSON. Thank you. 

One last question can be answered a yes, no, maybe so, and that 

is do you think the legislation H.R. 4115 will remedy this situation 

that exists at this time? 

Mr. SCHNAPPER. As drafted, it will remedy it for plaintiffs but 

not for defendants because it only applies to complaints. As written, it will not apply to affirmative defenses. It wouldn’t apply to 

counterclaims. 

It is unclear if it would apply to a cross complaint. I would think 

it would. But so it works for plaintiffs. It doesn’t work for defendants. 

Mr. JOHNSON. Mr. Katsas? 

Mr. KATSAS. The legislation would make it impossible for any 

complaint to be dismissed based on either the conclusory or implausible nature of the allegations. To that extent, it would overrule decades of prior precedent and eliminate any screening of complaints on a motion to dismiss. 

Those changes would not simply restore the law to what it was 

immediately before Twombly. It would work very substantial and 

very unwelcome changes in the law. 

Mr. JOHNSON. Mr. Rubin? 

Mr. RUBIN. Well, as I said in my testimony, I would favor a less 

ambitious approach. This legislation would remedy the problem we 

are discussing, but it may also do a lot more and have other unintended consequences, which is why I favor a more limited approach. 

Mr. DAVIS. May I—— 

Mr. JOHNSON. Well, what kind of—what kind of things could 

happen as a result of this particular legislation? 

Mr. RUBIN. Well, one of the things that it appears that the legislation overlooks is the fact that a motion to dismiss is a—it is primarily a legal maneuver in order to test the illegal sufficiency of 

the claim as pleaded. 

Not all motions to dismiss go to whether the facts alleged are 

sufficiently informative. Sometimes we are going to—whether the 

facts allege—try to state a case that might be non-cognizable for 

other reasons besides a failure of the factual allegations—for example, where there is—— 

Mr. JOHNSON. Well—— 

249 

Mr. RUBIN [continuing]. Immunity or some other legal reason not 

to proceed. 

If the statute says that you can’t dismiss because—unless no set 

of facts could support the case, where is the demarcation between 

what we are trying to remedy, which is the Twombly problem 

case—which is where you can allege consistent but you can’t allege 

suggestive—and the other range of 12(b)(6) dismissals, which are 

an interaction between facts and law? 

Because the facts are going to be an input into whether or not 

you have got a legal problem with your claim, whether you have 

got an immunity, whether you have got a Trinko-type situation 

where it is not a cognizable claim because of regulation—that sort 

of thing. 

So that is what I am referring to by the unintended consequences 

of the statute. 

Mr. JOHNSON. All righty. 

And, Professor Davis, will this legislative proposal remedy the 

state of pleading now so that people are not restricted in coming 

into court? 

Mr. DAVIS. I think in large measure it would, and let me just say 

three quick things about it. First, I think the gist of the bill is to 

say let’s undo Iqbal and Twombly and take us back to the position 

we were in before those very significant changes that the Supreme 

Court effected. 

And so to that extent, I think it absolutely will. It will put us 

back to a system that worked. It wasn’t broke. We shouldn’t have 

tried to fix it. 

There are two other points I might make. One is it says a court 

shall not dismiss a complaint, and I think that consistent with the 

current language of Rule 8 it might be better to say ‘‘shall not dismiss a claim.’’ That would deal with counterclaims, cross claims, 

and not just complaints. So I think that is a very technical civil 

procedure sort of point, but that would be an improvement. 

And then one might consider more express language saying that 

this doesn’t—this just takes us back to the pre-Twombly, pre-Iqbal 

world. One could consider that. 

But I think on the whole it is a very reasonable bill and it would 

solve a lot of the problems that have been created by Iqbal and 

Twombly. Mr. JOHNSON. Thank you. 

And I will now turn it over to the Ranking Member for questions. 

Mr. COBLE. Thank you, Mr. Chairman. 

And good to have you all with us, gentlemen. 

Mr. Katsas, Judge Mark Kravitz, the chair of the Judicial Rules 

Advisory Committee, recently commented that judges are ‘‘taking a 

fairly nuanced view of Iqbal and that Iqbal has not thus far proven 

to be a blockbuster that gets rid of any case that is filed.’’ 

What is your comment on Judge Kravitz’s judgment? 

Mr. KATSAS. His judgment is supported by a massive array of 

statistics collected by the Judicial Conference and by a comprehensive 150-page memorandum prepared for the Judicial Conference. 

With respect to the statistics, the Judicial Conference has looked 

at some 800,000 cases between the beginning of 2007 and September of 2009. That is about 20,000 cases filed a month. They 

250 

have looked at motions to dismiss—how many are filed, how many 

are granted, in the period before Twombly and compared that to 

the period after Iqbal. 

One can hypothesize all one wants about what some particular 

judge might do, but what the statistics show over some 55,000 motions to dismiss is that motions to dismiss prior to Twombly were 

granted at a 38 percent rate in the 4 months before Twombly. Motions to dismiss in the 4 months after Iqbal were granted at a 38 

percent rate as well. 

That is pretty strong initial evidence that Judge Kravitz’s view 

that there is no big change here is, in fact, correct. 

Mr. COBLE. And I want to ask you another question, Mr. Katsas, 

then I want to hear from the other panelists as well, but you first, 

Mr. Katsas. And you touched on it peripherally. 

Experience in the 6 months since Iqbal was decided provides that 

no basis for believing that the decision will limit access to the Federal courts for plaintiffs with legitimate claims as defendants continue to lose motions to dismiss complaints even when they rely 

upon Iqbal. 

Do you think that this indicates that the Iqbal decision was simply a reiteration of what had already been largely prevailing law? 

You first, Mr. Katsas. Then the other gentlemen. 

Mr. KATSAS. Yes, I do. The fact that motions to dismiss are not 

being granted at higher rates tends to confirm what is quite obvious on the face of Twombly and Iqbal themselves, which is that 

neither decision changes prior law. 

We have heard some suggestion that the court just made up a 

plausibility requirement out of whole cloth. If you look at Iqbal, 

nine justices agreed that there is a plausibility requirement, citing 

Twombly, and disagreed about the particular complaint. 

In Twombly, seven justices endorsed plausibility, citing the respected treaties of Professor Wright and Miller and the numerous 

cases that I have mentioned. 

So whether you look at pre-Twombly case law or post-Iqbal case 

law, the plaintiffs have a great deal of leeway to pursue litigation, 

but at some point conclusory or implausible claims have to be dismissed in order to protect qualified immunity, in order to protect 

defendants from harassment in meritless cases, and so on. 

Mr. COBLE. I thank you for that. 

And, folks, I am trying to beat my red light, so if you all can sum 

up as quickly as you can. 

Professor, go ahead. 

Mr. SCHNAPPER. Thank you, your Honor—sorry. Just a couple of 

quick points. There are a number of studies which reach the opposite conclusion about the effect of this, and I could provide copies 

of those to the staff. 

But having read them, it is my view that none of this material 

is helpful. And the reason is, as Mr. Katsas points out, it is about 

the rate at which motions to dismiss are granted. The problem is 

that motions to dismiss are now made in cases they wouldn’t have 

been made before. 

Defendants don’t move to dismiss in all cases. They move to dismiss in cases that fit the law at the time. And they are now moving 

251 

to dismiss in cases that wouldn’t have been dismissed before. That 

is where the problem is, and it is reflected in two things. 

First of all, the numbers of dismissals of employment discrimination cases is up about a third after Iqbal. The rate hasn’t changed 

in all the studies, but the number has gone up. 

Secondly, in one of the cases I have referred to in my materials, 

the Ocasio-Hernandez case, at the end of the case the judge points 

out that until Iqbal—and the judge dismissed the case under Iqbal. At the end of the case, he points out that before Iqbal the defense 

lawyer, who was a very good lawyer, he said, didn’t even move to 

dismiss, because under the law that existed prior to Iqbal that 

wasn’t suitable for motion. 

So I think the problem isn’t the rates, it is the numbers. 

Mr. COBLE. And my red light is on, guys, so if you can—if you 

could sum up as quickly as you can, I would appreciate it. 

Mr. RUBIN. Yes, I just would like to—I don’t find the statistical 

evidence helpful one way or the other. We simply don’t know what 

wasn’t filed after Iqbal because of Iqbal, and we don’t know what 

really was dismissed because of Iqbal or Twombly just because 

they cite Iqbal or Twombly. So I don’t find them informative at all. 

Mr. COBLE. Thank you. 

Professor? 

Mr. DAVIS. And just two quick points. One is Arthur Miller, the 

author of the very treatise to which Mr. Katsas cites, has described 

Iqbal and Twombly as a sea change. And the reality is it is a radical change from what existed before. 

The other thing on statistics—I would just concur about how limited is what we know. If they have the effect that we believe, where 

it is harder to survive a motion to dismiss, you would expect more 

violations of the law because defendants are emboldened, because 

they are unlikely to be held accountable. 

You would expect stronger cases to be filed as plaintiffs give up 

on some of the cases they would have filed before because they 

can’t survive a motion to dismiss. 

And then a similar level of either filing of motions to dismiss or 

of granting them wouldn’t tell us much, because the whole background has changed in light of these rules. 

And until we can figure out how to measure those things, the 

statistics aren’t really going to tell us much one way or the other. 

It is a dynamic system, not a static one. 

Mr. KATSAS. Could I just make one quick point? We actually do 

know something about the rate of filing of motions to dismiss. 

In that same universe of 55,000 cases that I mentioned—motions 

to dismiss filed in 34 percent of cases in the 4 months before 

Twombly, 36 percent of cases in the 4 months after Iqbal—that 

does not, to me, sound like a sea change. 

Mr. COBLE. Gentlemen, you have been a good panel. 

And I yield back, Mr. Chairman. 

Mr. JOHNSON. Thank you, sir. 

All right, I will recognize Bob Goodlatte for questions. 

Mr. GOODLATTE. Well, thank you, Mr. Chairman. 

I find this debate about the impact that this—these two decisions 

have had to be very interesting. I, quite frankly, agree with Mr. 

Katsas that the evidence does not show a significant change, and 

252 

I think that that in and of itself reflects on the fact that these decisions were not a significant change in the law. 

In fact, this legislation—and Mr. Nadler in his testimony 

harkened back to the Conley decision, which I don’t think has ever 

had a very high standard of credibility in our courts—there is a 

long chain of decisions by a host of courts and legal scholars and 

notes in various legal—I have got two pages of these things in our 

memo here on this. 

And it culminated in the comment by Justice Souter in the 

Twombly case, who concluded that the standard that some have 

advocated should be imposed through this legislation in H.R. 4115, 

the standard of Conley, had puzzled the profession long enough, 

and it made no sense to employ it any further. 

So quite frankly, Justice Souter—and some have alleged, including Mr. Nadler and others, that this is a conservative cabal, this 

is a conservative legislating from the bench. Justice Souter is not 

known by many people on my side of the aisle as a conservative 

justice in any way, shape or form. 

And quite frankly, I think every single member of the court recognized that there is a requirement for plausibility. 

So my question for each and every one of you is can you actually 

sit here with a straight face and say that we should put into a statute language that says a court shall not dismiss a complaint under 

one of those subdivisions on the basis of a determination by the 

judge that the factual contents of the complaint do not show the 

plaintiff’s claim to be plausible? 

In other words, if the plaintiff’s claim is implausible, that is not 

a basis for dismissing the case. This, in my opinion, would be a 

radical sea change in the standards that are set in our courts, not 

the other way around. 

So I will start with you, Professor Schnapper, and you are welcome to respond to that. But this language is stunning in terms of 

specifically instructing judges in our Federal courts to not dismiss 

cases if they are implausible. How do you defend that? 

Mr. SCHNAPPER. Your Honor, let me—I don’t want to seem too 

word-smithy about this, but there is some—there is an important 

distinction here between whether the plaintiff, without discovery, 

is able to establish that a complaint is plausible, or whether the 

judge affirmatively concludes it is an implausible claim. 

The problem is that the—we are talking about a decision that is 

made before all the evidence is known. And you know, at the 

point—we get to a point where—— 

Mr. GOODLATTE. So is your standard anything goes? I mean, you 

really like this Conley no-set-of-facts standard that you can allege 

anything and get into court? 

I mean, we talked here about how—in fact, Professor Davis cited 

that one of the reasons why we can argue about the statistics is 

that a lot of people may not have filed cases because they couldn’t 

stand up in court. That, to me, is a good thing, not a bad thing. 

Why would we waste billions of dollars of resources in our country, jamming our courts with cases that shouldn’t be in those 

courts, because we specifically tell the courts—the Congress specifically tells the courts that if you find a case is implausible, you can’t 

dismiss it on that basis? 

253 

Mr. DAVIS. If I may just—because the word ‘‘plausible,’’ as so 

many legal terms do, has—is a term of art. And plausibility has 

been read to require all sorts of things that very reasonable plaintiffs are unable to show. 

If you had told me that it was—that Tiger Woods had cheated 

on his spouse, I would have found that not only implausible but 

outrageous. And if his wife had brought suit on that basis, she 

never would have had her day in court, though it turned out she 

was absolutely right. 

The Bernie Madoff scheme—there are many things that happen 

that are implausible. And the way that courts have interpreted 

that word is often to ask plaintiffs not only to establish that something may well have happened that gives them every reason to believe they have a legal right, but that they at times have to allege 

the who, what, where, how of things they could not possibly know 

or get dismissed. 

And so that is—the word ‘‘plausible’’ here—— 

Mr. GOODLATTE. Well—— 

Mr. DAVIS [continuing]. It is—— 

Mr. GOODLATTE [continuing]. We don’t have divorce cases in Federal courts. But in the state of Virginia, you have to allege adultery 

with specificity. You can’t just say this happened. 

So you know, I understand what you are saying, but I don’t understand how you could build a standard into the law that says the 

issue of plausibility is off the table in every single pleading. 

Mr. Katsas? 

Mr. KATSAS. Yes. Think of the black-letter statements of motion 

to dismiss law. A plaintiff is entitled to have the truth assumed of 

well-pleaded factual allegations and all reasonable inferences from 

those allegations. 

A court need not accept unwarranted inferences. All right? Those 

are standard formulations that one sees in all of the case law. 

What this bill would do is compel the courts to adopt the opposite 

formulation, which is that a court must accept even unwarranted 

and unreasonable inferences from the facts pled. To me, that is just 

crazy. 

And think about how it would play out on the facts of Iqbal 

itself, right? We are in the wake of an unprecedented national security emergency after September 11th. The attorney general uses 

his authority under immigration law to detain people who may be 

connected to the terrorist attacks. 

And one of those guys wants to say, ‘‘Well, I was just detained 

because of my religion and the attorney general was not acting to 

protect the country but to discriminate against Muslims. I get to 

sue the attorney general.’’ That seems to me crazy. And that is exactly what would be permitted under this bill. 

And as Judge Cabranes said in the Second Circuit decision in 

Iqbal, if you allow that case to go forward, you have a blueprint— 

a blueprint—for people to bring baseless, politically motivated suits 

against cabinet officers for doing their job and making very tough 

calls to keep the country safe and to exercise all sorts of other— 

make all sorts of other difficult decisions in the performance of 

their duties. 

That seems to me a floodgate that we should not open. 

254 

Mr. SCHNAPPER. If I could respond a second—— 

Mr. GOODLATTE. Yes, we took it away from Professor Schnapper, 

and I think we need to let him get back to—— 

Mr. SCHNAPPER. Just to respond to the second questions you 

asked, I understand that your view is that the no-set-of-facts standard is a bad standard and that that is not what the courts were 

applying prior to Iqbal. I took a look in Westlaw for that particular phrase to see if it 

was, in fact, being relied on by the courts prior to Iqbal, in the year 

before Iqbal. The number of cases in which it was cited is 1,631. 

So it was out there. 

Mr. GOODLATTE. Yes, but you have to read what those cases said, 

because I have here in front of me—well, I am going to—here you 

have a case—no-set-of-facts standard has never been taken literally, or unfortunately provided conflicting guideposts, or no-setof-facts language in Conley has never been taken literally, or noting that Conley’s no-set-of-facts language has not been—is not to be 

taken literally, noting that Conley’s no-set-of-facts statement if 

taken literally would foolishly protect from challenge complaints alleging that only that the defendant wronged the plaintiff or owes 

plaintiff a certain sum, literal compliance with Conley could consist 

simply of giving names of the plaintiff and the defendant and asking for judgment. 

I mean, so I don’t—you know, we are talking about statistics 

here. I don’t think you can simply say that you ran a search on noset-of-facts and found that the courts were favorably viewing that 

as a standard in pleadings cases. 

And let me just close—my time has expired, too—by saying that 

this is an area that is clearly a fine point in the law. We want people to be able to get into court, and they are not going to be able 

to allege in their pleadings a full set of facts upon which they base 

their claims because they don’t know the full set of facts and want 

to get to discovery. 

But we have to have some kind of standard other than no-setof-facts to get into court. Otherwise, we are going to see, you know, 

an explosion of litigation. In this day of the preservation of information—e-mails and so on—the amount of and the cost of discovery in these cases is staggering. 

And to say that you can get into court on the basis of no-set-offacts and then start plowing through and require the defendant to 

plow through and provide documentation when they have an infinitely larger amount of data to plow through than they ever did in 

the old environment, where every—where whatever was kept was 

on a piece of paper, is a standard that I don’t think is an acceptable 

one for the future. 

I think that we are far better off letting the court deal with these 

nuances than trying to ham-handedly write legislation that would 

actually say into law that a judge cannot dismiss a case that he 

finds to be implausible. 

Thank you, Mr. Chairman. 

Mr. JOHNSON. Thank you, Mr. Goodlatte. 

And since I took so much time asking questions myself, I feel obligated to bestow that same right upon my friends on the other side 

of the aisle. 

255 

Mr. COBLE. I am fine, Mr. Chairman. 

Mr. JOHNSON. All right. All right. 

No further questions. This has been an intriguing hearing. And 

a lot needs to be done to restore—I guess not sanity, but to restore 

the conditions which allowed people to come into court with a 

pleading. 

Now, it may or may not be meritorious. How do you make that— 

how do you make that determination? Is it something that you just 

don’t like this claim, and you don’t like the party who made the 

claim, and a judge deciding to—well, it is not very meritorious? 

I think we have heard the answer to that question. But it really 

does concern me deeply. And this will not be the last hearing that 

we have on this issue. 

I want to appreciate your time and your effort in coming to testify today. And I wish everybody happy holidays as well. 

And with that, this hearing is adjourned. 

[Whereupon, at 5:22 p.m., the Subcommittee was adjourned.] 

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