On what I imagine was a blustery fall day in Washington D.C. in 2009, the Advisory Committee on the Federal Rules of Practice and Procedure (Committee) was in a rather foul mood. That previous spring, the Committee finished two major rule projects, and it was hard at work on an upcoming conference of civil litigation experts to be held at Duke Law School.[1] The summer of 2009 was to be a respite—a calm between the storms really. Instead, as one Committee member put it, the Committee’s plans had been “hijacked by Congress and the Supreme Court.”[2] The last thing the Committee needed was an addition to its to-do list; yet, primary on its agenda was the item souring the Committee’s collective attitude: Ashcroft v. Iqbal[3] and Rule 8.[4]
Despite its disappointment, the Committee dutifully set to work. First, it had to determine how to respond to what many commentators argued was an institutional overstep by the Supreme Court—its decision in Iqbal.[5] Second, it had to work with Congress to attempt to stem the tide of any hasty legislation that might make post-Iqbal matters worse.[6] And, finally, it had to balance the projects it had already started, namely the civil-justice-system deep dive it planned for the 2010 Duke Conference.[7]
It is not surprising then that the Committee felt overwhelmed. Yet, five years later—a mere blink of an eye in rulemaking terms—the Committee decided that it needn’t do anything in response to the Court’s Iqbal decision.[8] It turns out, if we take the Committee at its word, all that handwringing was for nothing. Instead, the Committee turned its attention to other pressing matters like amending the discovery rules and abrogating Rule 84 and its attendant forms.[9]
Through its memorandum, meeting minutes, and public hearings, the Committee put forward an account of its actions in the ten years following Iqbal. This Essay argues that there is more to the story. The Committee’s inaction and action over this ten-year period—especially with respect to Rule 8 and Rule 84—provide us with a case study of modern rulemaking. After a close look at this episode, it seems that the Committee often says one thing whilst it does another. Stated differently, the Committee is, at times, quite janus-faced.
To unearth that story, the first Part of this Essay will survey ten years of federal civil rulemaking post-Iqbal and highlight five common themes that have emerged. These themes are not unique to post-Iqbal rulemaking, but are instead emblematic of other episodes of modern rulemaking. Second, the Essay will discuss how these themes and pressures result in moves by the Committee that appear (or in fact are) janus-faced. Finally, the Essay will close with some thoughts on how the Committee can reclaim its place within the Rules Enabling Act structure.
A historical account of the Committee’s work in the ten years after Iqbal is revealing. The ten years of post-Iqbal federal civil rulemaking demonstrate how deeply the Committee is affected by outside factors. To cope, the Committee has adopted a set of idiosyncrasies—quirks really—in its rulemaking process. These quirks come into sharp relief in the years following Iqbal, but they are not new. I have categorized them into the following five buckets: (1) deliberate deliberation, (2) institutional actor timidity, (3) anec-data, not data-data, (4) a how-do-we-look obsession, and (5) resistance to outside criticism.
The Committee’s work is slow and steady by design. When it came to Iqbal though, the Committee was next-level deliberate. The rulemaking process takes three years, generally, from start to finish.[10] This allows the process to be thoughtful and planned. But in the wake of Iqbal, the rulemaking Committee moved at a glacial pace. At first, the Committee seemed paralyzed by the length of time it would take to act because it worried it could not move fast enough to “fix” what the Court had broken.[11] Once some time had passed though, its deliberately deliberative approach morphed. It began to worry that it didn’t know what exactly it was meant to “fix,” such that it needed to wait and see what problems might arise.[12]
Some context is instructive. When the Court’s Iqbal decision came down, those outside the Committee responded swiftly. Many commentators argued the Court had overstepped its Rules Enabling Act role by reading plausibility into Rule 8’s instruction that the plaintiff state a claim showing it was entitled to relief.[13] The alarm was more than linguistic. Many were also concerned that if Rule 8 was not returned to its pre-Iqbal iteration, plaintiffs’ complaints would be prematurely dismissed.[14] Congress even intervened by proposing legislation that would return pleading to its pre-Iqbal standard.[15] This flurry of activity was at its height when the Committee first met in the fall of 2009.
At first, during those deliberations, Committee members expressed concern that if the problems created by the Court’s decision were so acute, the rulemaking process could not respond quickly enough. Even assuming the Committee could draft a revised rule quickly, it would still take three years to pass it.[16] During that time, myriad things could intervene to upset their work. Congress could pass its bill returning Rule 8 to its original pristine condition.[17] The Court could decide another case clarifying further what Iqbal required. Lower courts could handle Iqbal differently and present a new pleading Gordian knot for the Court to unravel.[18] Conversely, lower courts could interpret Iqbal narrowly, rendering an amendment to Rule 8 completely unnecessary.[19] The Committee thought through all these scenarios and froze.
Well, it didn’t freeze completely. It embarked on several studies. At the time of its fall 2009 meeting, Andrea Kuperman, the Standing Committee’s Rules Clerk, had already begun following circuit court decisions discussing Iqbal.[20] Her tentative report concluded that “it appears that some cases are dismissed now that would not have been dismissed before Twombly and Iqbal.”[21] Kuperman was unable to conclude, however, whether those dismissed cases would have ultimately been meritorious had they survived the new pleading standard.[22] These tentative conclusions led the Committee to ask the Federal Judicial Center (FJC) for help by conducting a study.[23]
In the meantime, the Committee’s deliberate deliberation continued, yet the Committee shifted its focus. Instead of being concerned that it could not respond quickly enough because of all the moving parts, the Committee began to worry that the target was too much of a moving one. Thus, the best course of action was to adopt what Lonny Hoffman has coined the “wait and see” approach.[24] Indeed, in the November 2011 Committee minutes, the Committee’s discussion about what the Court, Congress, and lower courts might do “led to the suggestion that matters remain in the stage of waiting to see what is happening and how practice will develop.”[25] Put differently in another meeting, the Committee found, “We do not yet know whether there is a problem, nor what the problem is if indeed there is a problem.”[26]
During this period of deliberate deliberation, the Committee waited and saw, but then it ended with no action. As will be discussed later, the Committee acted on other matters, some related to Rule 8, but it never addressed Rule 8 directly. When the Committee met in November 2010, its agenda book reflected a memorandum containing potential proposals for amending Rule 8, among other rule amendments that could have been made in response to Iqbal.[27] Yet, the Committee appears to have never deliberated over these potential amendments at this meeting.[28] They certainly did not do so before or after. To the contrary, the Committee deliberated its way into deciding that Rule 8 did not need an amendment or any other change.
While Rule 8 and Iqbal were in the front of the Committee’s collective mind from 2009 until 2012, the subject all but disappeared from the Committee’s collective consciousness after that. There are a couple of times where individuals outside the Committee proposed changes to Rule 8; thus, the Committee had to discuss Rule 8, but it did so begrudgingly. In response to one such proposal,[29] the minutes tersely stated, “The Committee, however, has repeatedly considered Rule 8, often in depth, over the course of the last 25 years. There is little reason to again take up the subject now. The Committee voted to remove this item from the agenda without further discussion.”[30]
This quote indicates that the Committee deeply believed it had sufficiently studied and thought about Rule 8 and Iqbal. It had certainly deliberated—deliberately so—but, the question remains, to what end did any of its deliberations respond to Iqbal?
B. Institutional Actor Timidity
The second theme—institutional actor timidity—demonstrates how the Committee is quite timid of its role in the Rules Enabling Act process. That process requires the work of other institutional actors, and one of the most fraught relationships is between the Supreme Court and the Committee. After all, the Committee’s members are appointed by the Chief Justice,[31] the work of the Committee is delegated from the Court to the Committee,[32] and the Court is part of the process as its approval is required for an amendment to be adopted.[33]
An understanding of this theme requires some background understanding of how the Rules Enabling Act process works. The Committee is responsible for originating the work that changes the Civil Rules as we know them.[34] The Committee meets biannually to discuss proposals for how to improve the Civil Rules.[35] These proposals can come from bar groups, academics, Committee members, and even Congress.[36] If the Committee deigns to amend the rules in any way, it approves the revised rule and sends that proposal to the Standing Committee on the Federal Rules of Practice and Procedure for its approval.[37] Upon Standing Committee approval, the amendment is published for public comment.[38] Once that process is over and the rule reapproved, it is transmitted to the Judicial Conference for its blessing and then to the Supreme Court for its approval.[39] The Supreme Court then transmits the rule to Congress, who can act to defeat or amend the proposal by December 1 of that year.[40] Assuming Congress does not act, however, the rule becomes law.[41]
This process demonstrates that while the Committee is important, it is but one cog of the process. The Committee is aware of other institutional actors within the process, but of all the other actors in the process, it seems the Committee is most intimidated by the Court. This is not completely illogical. First, as already discussed, the Committee’s work requires the Court’s approval before going to Congress. Second, the Committee members owe their membership on this elite committee to Chief Justice John Roberts, as he makes the appointments.[42] In addition, four of the current justices, Chief Justice Roberts, Justice Alito, Justice Gorsuch, and Justice Kavanaugh were members of the Appellate Rules Committee, making the Court’s deep knowledge of the Rules Enabling Act process all the more palpable.[43] Finally, the Committee’s work—an amended rule that has made its way through the Rules Enabling Act process—might even get a secondary look from the Court if it is required to interpret a Civil Rule in a case before it.[44] The Court’s double-look at the work the Committee does—one in a rule’s origination and one in a rule’s interpretation—means that the Court has something of a more consequential role in how the Civil Rules evolve.[45]
Yet, in looking at the Committee’s deliberations following Iqbal, its preoccupation with the Court is outsized. For example, in April 2011, the minutes reflect the Committee’s uneasiness around what other pleading cases the Court might take. The minutes state, “The Supreme Court seems to continue active consideration of these problems. It is a moving target.”[46] Perhaps because Twombly and Iqbal were decided in such proximity, the Committee worried that any action it took on Rule 8 would be superseded by another of the Court’s decisions. In addition, the Committee openly questioned whether its authority as rulemaker would be honored if it made a change to Rule 8. The Committee members worried that lower courts might not take its amendment seriously until the Court had a chance to interpret that new rule. The minutes state, “Lower courts, moreover, would know that the Supreme Court would be providing the ultimate and authoritative interpretation of the amended rule. The Twombly and Iqbal opinions would continue to influence their reactions.”[47]
However, if a change to Rule 8 were made through the Rules Enabling Act process, that rule would be the law. The Court would have approved it, albeit in its role in the process as approver (and not in its separate role as interpreter).
What the Court might ultimately do in a case begging for the interpretation of a revised rule should have been of no moment. But it was. The Committee seemed keenly preoccupied with how the Court might later interpret any change it made to Rule 8. Yet, any rule amendment by the Committee might eventually be interpreted by the Court.[48] The Committee’s role in the Rules Enabling Act is independent of the Court’s role in rule interpretation. Thus, the Committee’s timidity in this context means that it might not be fulfilling its duties in the Rules Enabling Act process.[49]
The Committee is made up of a band of experts, elite judges, lawyers, and academics who are at the top of their respective professions. Yet, this expertise does not mitigate the biases to which we all succumb. Quite the contrary, the rarified air in which Committee members operate might make them even more susceptible to groupthink dynamics like confirmation bias and blind spots.[50]
Danya Reda and Beth Thornburg have written extensively about how Committee members have fallen prey to these basic psychological realities.[51] Thornburg has argued that “[p]henomena such as the availability heuristic and confirmation bias can lead us to see and believe some claims and fail to see, or to credit, others.”[52] This impulse is especially strong where group members have “similar backgrounds and beliefs” because they “tend to reinforce rather than challenge each other’s biases.”[53]
When it comes to the ability of the group to then digest empirical data—especially data that differs from Committee members’ own experiences—the Committee has had a hard time believing what it is seeing. For example, the Committee recently amended the discovery rules, namely Rule 26(b), to include proportionality in the definition of scope of discovery.[54] It did so to stem the tide of what it saw as costly and inefficient discovery in litigation.[55] Yet, as Reda argued, “[d]ecades of empirical work . . . support[] the view that the federal civil system is highly effective in most cases, that total costs develop in line with stakes, and that discovery volume and cost is proportional to the amount at stake.”[56] The Committee had all this data in the discovery context, yet members defaulted to what they knew to be true anecdotally.[57]
Similar behavior emerged during the Committee’s deliberations following Iqbal. The FJC conducted a study of grant rates for motions to dismiss in the years leading up to and following Iqbal.[58] While the FJC did not find a “statistically significant” increase in grant rates with leave to amend, there was an actual increase.[59] Lonny Hoffman criticized the FJC for not sufficiently explaining the meaning of its study to Committee members, namely what it meant for a finding to be, or not to be, statistically significant.[60] Moreover, multiple studies conducted by other scholars, while perhaps flawed in some ways, overwhelmingly showed that grant rates increased following Iqbal.[61] Not only that, those grant rates increased in substantive-specific ways—civil rights and employment discrimination cases saw larger increases than tort and contract, for example.[62]
Despite this empirical evidence, the Committee members relied heavily on anecdotal evidence to determine that nothing had really changed, and consequently that Rule 8 did not need to be modified. As a result, their decisionmaking was based on anec-data, not data-data. One judge Committee member noted, for instance, that “[o]bservers often complain . . . about the fate of employment discrimination cases. But ‘I never get a motion to dismiss in employment cases’ [because] [t]hey are pleaded carefully and effectively.”[63] Even though empirical data suggested that motions to dismiss were filed in employment discrimination cases at higher rates and that those motions were consequently being granted at higher rates, the judges’ own experience was a stronger data point, at least in this case.
In addition, during the FJC study discussion, another judge “observed that many district judges have said that Twombly and Iqbal have not made much of a difference, apart from an increase in the rate of filing motions.”[64] First, the available empirical evidence suggested that this anecdotal observation was simply not true.[65] Second, even if his observation were true, it fails to appreciate that an increase in motion filings would necessarily translate into more dismissals (in raw numbers).[66] More motions being filed, even with static grant rates—something much of the data disputed—meant that more cases were being dismissed in the aggregate.[67] Yet, the reliance on individual experience, and not the larger body of evidence to the contrary, gave the Committee comfort that there might indeed be nothing to fix following Iqbal.
A fourth theme is that as the Committee has come under heightened scrutiny by Congress, academics, and the public, it has become more concerned with the appearance of objectivity and how it looks throughout the process.[68] As scholars like Steve Burbank and Dana Reda have argued, the idea that the Committee is doing value-free or normative-free work is simply not true.[69] As Reda has observed, the rulemakers “are not dealing with ‘fact’ but with policy or normative judgment.”[70]
Yet, the Committee seems committed to making it look as though its work is neutral and objective. This is especially true in the face of increased skepticism around the Committee’s collective ideological leanings. Whether those criticisms and skepticisms are rightly made, the Committee seems deeply affected by them, so much so that it has made an overt effort to argue it is objective and neutral. In a discussion of Iqbal, the minutes reflect the following paradigmatic expression of the Committee’s concern with how it looks: “It is important to keep in mind, and to publicize, the achievements of the Committees over time and the importance of maintaining the Enabling Act tradition of open, deliberate, responsible rulemaking.”[71]
The Committee is so clearly aware of how it appears to those that are watching. This is an odd, but predictable, consequence of opening up the process to public view in the 1980s.[72] This reality of how the Committee perceives itself and how it hopes the public will perceive it undoubtedly impacts its work.[73] This is especially true of how the Committee approached Iqbal as it tried to hold the Rules Enabling Act process, the Committee’s reputation, and that of the Court in balance.
E. Resistance to Outside Criticism
Related to the previous theme is the Committee’s resistance to outside criticism. Under the pressure and scrutiny of the last several decades—and in response to some fair, but also some unfair attacks from attorneys and academics—the Committee has sometimes taken a combative posture.[74] Instead of approaching outside critiques as an opportunity for collaboration, the Committee attempts to defend itself. Oftentimes, as it did in the wake of Iqbal, this takes on an almost dismissive tone. This is especially true when it comes to the Committee’s opinion of members of the legal academy.
For example, in reflecting on how Twombly and Iqbal were being discussed in the academy, the then-Chair of the Committee stated, “[t]hey have fostered more law reviews, and supported more tenure awards . . . .”[75] Further adding to the dismissal of this work a year later, he launched the discussion of pleading by observing that “[a]ll law professors know what Twombly and Iqbal mean. Mere mortals do not.”[76] These statements are not damning, but they are dismissive and do little to foster the kind of collaboration the Committee and the academy could and should have.
Disagreement does not translate into disrespect. Quite the contrary, disagreement and a full airing of issues would go a long way toward producing a better product.[77] To dismiss outside criticism—as the Committee did during the Iqbal period—misses an opportunity to improve both the process and the rules.[78]
The conflation of these five themes is not without impact. It places the Committee in quite a pickle, and this was especially true following Iqbal. In short, the Committee was (1) paralyzed, (2) concerned that any action it took would be thwarted by the Court, (3) committed to a particular set of facts and studies following the case, (4) worried that any action it took would look ideologically driven, and (5) resistant to criticism from the outside.
And this is where its janus-faced action kicked in. To be clear, by janus-faced, I am not arguing that the Committee is purposefully deceitful. Rather, I argue that in their effort to manage what the Committee views as the hyper-politicized, ideological context in which it does its work, its overt attempt to appear “neutral” at all costs results in a janus-faced approach to rulemaking.
The best example of this is what the Committee did and did not do in the ten years following Iqbal. In short, after five years of deliberation, the Committee decided not to amend Rule 8 because it believed (1) it was not required by the data it collected on the impact of the case, and (2) it would be futile because the Court did what it did and would do whatever it wanted to do going forward.[79] As discussed above, the veracity of these two reasons for not moving forward on an amendment to Rule 8 is debatable. Regardless, the Committee did not act on Rule 8.
What the Committee didn’t do is not nearly as interesting as what it did do. Simultaneous with its discussion of Rule 8, the Committee began discussing the abrogation of Rule 84 because, among other things, old Form 11’s “negligently drove” language looked to be a conclusory allegation unsupported by well-pleaded facts.[80] In other words, the form appeared to be in direct conflict with what the Court had just decided in Twombly and Iqbal. As scholars have noted, the Committee explicitly discussed how Iqbal called Form 11 into question and made it difficult to reconcile what purpose the form could serve following that decision.[81]
At first—worried that doing anything to the forms would look like it was motivated by Iqbal (because it largely was)—the Committee decided to wait.[82] But then, within a year or two—and within the same amount of time it decided to do nothing about Rule 8—it abrogated Rule 84 and basically eliminated almost all of the forms.[83] As scholars including myself have argued, the abrogation of Rule 84 was an implicit amendment of Rule 8.[84] By eliminating the “conflicting” form, the Committee effectively endorsed the Court’s view of Rule 8.[85]
And, here is the point. On the one side—Rule 8 itself—the Committee did not amend a rule that seemed to be begging for overt action in the wake of Iqbal. On the other side—Rule 84 and the forms—the Committee abrogated Rule 84 and eliminated Form 11. While doing the latter, the Committee departed from its earlier position on the conflict created by Iqbal and Form 11 by claiming it was no longer looking at the forms to eliminate that conflict. Instead, it was abrogating the forms for administrative reasons unrelated to Iqbal.[86] The Committee was simply getting out of the forms business.[87]
This is janus-faced rulemaking. The Committee said one thing: Rule 8 did not require an amendment. At the same time, it did another: eliminated the forms and implicitly changed Rule 8. Yet, while these themes come into full relief following Iqbal, they are not unique to that period. There are other examples where the Committee, under the pressure of the themes that inform modern rulemaking, seems to say one thing while it does another. For example, when the Committee amended Rule 26(b)(2) to add proportionality to the definition of the scope of discovery, it engaged in a similar pattern. The Committee stated that it was simply moving language from old Rule 26(b)(2)(C) to the scope definition in Rule 26(b)(2).[88] It did this, it argued, to encourage judges to consider proportionality in its discovery decisions.[89] Yet, scholars and lawyers on both sides of the aisle argued that this was a dramatic shift in definition of the scope of discovery.[90] In the face of this critique, the Committee stuck to its story of just relocating language.[91]
It is not that the Committee has engaged in janus-faced rulemaking in every case. But, where highly controversial issues arise—issues that put even more pressure on the Committee and its work—the Committee has sometimes coped with these pressures by attempting to thread a needle. It has attempted to be responsive and get meaningful work done but has undersold what it is actually doing.
While janus-faced rulemaking is a disturbing trend, it might also be a rational response. Again, the Committee is at the epicenter of the five themes described earlier in this Essay. When those pressures converge, the Committee has little room to act. It must fulfill its responsibility to the Rules Enabling Act process, but it must do so in a way that gives enough deference to the Court, appears neutral, and makes a change that is responsive but not disruptive. The question is whether, even if a rational response, it is an optimal one.
III. Reclaiming Rules Enabling Act Process Ground
Whether the Committee has engaged in janus-faced rulemaking consciously or not is of no moment. The point is that it has. And, the systemic question is whether it should continue to do so or whether it should change its approach. I argue that it should do the latter.
Janus-faced rulemaking, even if it might be a rational response, is problematic because it is not true to the rulemaking Committee’s institutional role. The Committee’s role in the Rules Enabling Act process is to study the Civil Rules and propose optimal changes.[92] In the Iqbal context, this means that if the Committee believed that Form 11 was made problematic by Iqbal and that Iqbal was anathema to Rule 8, it should have amended Rule 8. If the Court defeated the rule through the Rules Enabling Act process or decided a case on the merits that otherwise thwarted the Committee’s work, so be it. The Committee has an institutional role, and it should lean into it.
When it fails to do so, the Committee cedes ground in the process, both positionally and substantively. First, if the Committee does not fully occupy its role, other institutional actors will move into that vacuum. Yet, the Committee is uniquely designed to engage in rulemaking. It is a band of experts inserted into a necessarily deliberative and thoughtful process that allows for the kind of study and processing required to create optimal rules. While there are valid critiques of the rulemaking process,[93] it is still an excellent vehicle for rule reform.[94]
Second, when the Committee steps out of the way or acts passively, it does not fully engage in the rulemaking process. That means the valuable judgments and insights to be gained in that process are lost. The Committee members themselves feel constrained by the pressures brought to bear on modern rulemaking, so they do not get to fully engage in the process. And, when the Committee members don’t get to engage, it means that potential rules are never floated, never considered internally, and most critically, not engaged externally. The value of the Rules Enabling Act process lies not just in the Committee itself, but in the Committee interactions with the bench, bar, and the academy. When the process is stifled, that opportunity is lost. This means that the process, when janus-faced, is producing sub-optimal rules.
While the themes discussed in this Essay are the product of real pressures and challenges, the Committee must do its best to resist utilizing janus-faced rulemaking as an answer. Instead, it must take its seat at the Rules Enabling Act table, assert itself relative to the Court, take heed of its implicit biases, stop claiming that its work is not value-laden, and be receptive to outside collaboration and criticism. In other words, it must conduct itself as it was intended. The Committee is an incredibly powerful institutional actor, and with that comes a great deal of responsibility. It is time for the Committee to step up to that challenge. It can start by speaking outside of one side of its mouth instead of two.
[1] Civil Rules Advisory Comm., U.S. Judicial Conference, Minutes October 8–9, 2009, at 2 (2009), https://www.uscourts.gov/sites/default/files/fr_import/CV10-2009-min.pdf [https://perma.cc/GLV6-L96H] [hereinafter October 2009 Minutes].
[5] See infra notes 13–14 and accompanying text.
[6] October 2009 Minutes, supra note 1, at 8–9.
[8] See infra notes 27–29, 79 and accompanying text.
[9] See infra notes 80–85 and accompanying text.
[10] James C. Duff, Overview for the Bench, Bar, and Public, U.S. Cts., https://www.uscourts.gov/rules-policies/about-rulemaking-process/how-rulemaking-process-works/overview-bench-bar-and-public [https://perma.cc/H7RG-G7A2].
[11] See infra notes 16–19 and accompanying text.
[12] See infra notes 24–28 and accompanying text.
[13] See Mark Herrmann, James M. Beck & Stephen B. Burbank, Plausible Denial: Should Congress Overrule Twombly and Iqbal?, 158 U. Pa. L. Rev. PENNumbra 141, 148 (2009) (“The Supreme Court did not ‘clarify the standards for courts to assess complaints upon motions to dismiss’ in its recent pleading decisions. It changed them. It did so, moreover, through a process that was illegitimate and inadequate given the statutory requirements of the Rules Enabling Act, 28 U.S.C. § 2072 (2006), the stakes, and the Court’s woeful lack of both information and experience regarding the important issues of public policy implicated.”); Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1, 84 (2010) (“The Supreme Court’s legislative-like decisions in Twombly and Iqbal and the 1986 trilogy have caused many to question the continuing role of the rulemaking process and its current statutory structure.”); Jeremiah J. McCarthy & Matthew D. Yusick, Twombly and Iqbal: Has the Court “Messed Up the Federal Rules?,” 2010 Fed. Cts. L. Rev. 1, 1 (2010) (“Absent a convincing explanation from the Court as to how the pleading standard enunciated in Twombly and Iqbal is consistent with Rule 84, whether the promulgation of that standard was in conformity with the Rules Enabling Act will continue to be an open question.”).
[14] Miller, supra note 13, at 71 (“The Court’s establishment of plausibility pleading, with its emphasis on the need for factual allegations, has a direct impact on the accessibility of the federal courts to the citizenry in all categories of cases. To a degree not yet determined, it will chill a potential plaintiff’s or lawyer’s willingness to institute an action. And even if one is started, it will result in some possibly meritorious cases being terminated under Rule 12(b)(6), thereby reducing citizens’ ability to employ the nation’s courts in a meaningful fashion.”).
[15] Congressman Jerrold Nadler introduced the Open Access to Courts Act of 2009, which would have returned the Conley v. Gibson, 355 U.S. 41 (1957), “no set of facts” language back into Rule 8’s standard. Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. (2009). Similar legislation was put forward in the Senate, but neither bill made it through the process. Notice Pleading Restoration Act of 2009, S. 1504, 111th Cong. (2009).
[16] October 2009 Minutes, supra note 1, at 9 (“Even if the Committee could know precisely what rule amendments are desirable, it would take three years to test the amendments through the regular Enabling Act process.”).
[18] Id. at 9 (“Lower courts would continue to develop pleading practices during the interim, and might well show the need to further revise what initially seemed precisely right.”).
[24] Lonny Hoffman, Rulemaking in the Age of Twombly and Iqbal, 46 U.C. Davis L. Rev. 1483, 1488 (2013) (“The first dominant theme, running from the rulemakers’ first meeting after Twombly all the way through to the present day has been that it is too soon to consider rule reform.”).
[25] Civil Rules Advisory Comm., U.S. Judicial Conference, Minutes November 7–8, 2011, at 32 (2011), https://www.uscourts.gov/sites/default/files/fr_import/CV11-2011-min.pdf [https://perma.cc/P8XS-55WN] [hereinafter November 2011 Minutes].
[26] Civil Rules Advisory Comm., U.S. Judicial Conference, Minutes March 18–19, 2010, at 10 (2010), https://www.uscourts.gov/sites/default/files/fr_import/CV03-2010-min.pdf [https://perma.cc/5U48-NTDD] [hereinafter March 2010 Minutes].
[27] Civil Rules Advisory Comm., U.S. Judicial Conference, Agenda November 15–16, 2010, at 322–29 (2010), https://www.uscourts.gov/sites/default/files/fr_import/CV2010-11.pdf [https://perma.cc/94NJ-CCB6].
[28] There are no final minutes for the meeting of the Civil Rules Advisory Committee on November 15–16, 2010. There are only draft minutes in the Committee’s April 2011 agenda book. Civil Rules Advisory Comm., U.S. Judicial Conference, Draft Minutes November 15–16, 2010, at 6–37 (2010), https://www.uscourts.gov/sites/default/files/fr_import/CV2011-04.pdf [https://perma.cc/2LDN-56BU] [hereinafter November 2010 Draft Minutes].
[29] Civil Rules Advisory Comm., U.S. Judicial Conference, Minutes April 10, 2018, at 34 (2018), https://www.uscourts.gov/sites/default/files/2018-04-10-cv_minutes_final_0.pdf [https://perma.cc/CL29-5GTR] [hereinafter April 2018 Minutes]. The proposal “recommends a rule that would considerably shorten complaints.” Id.
[31] Committee Membership Selection, U.S. Cts., https://www.uscourts.gov/rules-policies/about-rulemaking-process/committee-membership-selection [https://perma.cc/KM5X-2MGX] (“The Chief Justice appoints the committee members whose terms are limited to no more than six years.”).
[32] Advisory committees are authorized by 28 U.S.C. § 2073(a)(2): “The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under § 2072 and § 2075 of this title. Each such committee shall consist of members of the bench and the professional bar, and trial and appellate judges.”
[34] Id. For a more detailed description of the rulemaking process, see generally Brooke D. Coleman, Recovering Access: Rethinking the Structure of Federal Civil Rulemaking, 29 N.M. L. Rev. 261, 274 (2009) (describing the original guiding principles of the original rulemakers and the origins of the rulemaking process).
[43] Appellate Rules Advisory Committee, U.S. Judicial Conference, 2004 Roster (2004), https://www.uscourts.gov/sites/default/files/st_roster_2004.pdf [https://perma.cc/5U89-ESBF]; Brett M. Kavanaugh, Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907, 1908 (2017) (in reference to Justice Neil Gorsuch, “We serve together now on the Appellate Rules Committee of the Judicial Conference”).
[44] Elizabeth G. Porter, Pragmatism Rules, 101 Cornell L. Rev. 123, 128 (2015) (“The first such tension is structural: The Court sets policy through promulgating the Rules and through interpreting them in adjudication.”).
[45] Id. at 156 (discussing the “strangely conflicted position the Court occupies as it straddles its dual responsibilities”).
[46] April 2011 Minutes, infra note 63, at 30.
[47] November 2010 Draft Minutes, supra note 28, at 23.
[48] See supra notes 44–45 and accompanying text.
[49] The Committee similarly bowed to the Court during its amendments to the class action rules. There, the Committee was considering an amendment to Rule 68 that would disallow defendants from “picking off” representative plaintiffs in a putative class action by offering them a full settlement amount. Simultaneously, the Court took certiorari on a case that brought some of these same issues to the fore. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016). Once the Court took that case, the Committee abandoned its proposal, something it had not done previously when the Court took certiorari on overlapping cases. Civil Rules Advisory Comm., U.S. Judicial Conference, Minutes April 14, 2016, at 16–17 (2016), https://www.uscourts.gov/sites/default/files/2016-04-14-civil_rules_minutes_final_0.pdf [https://perma.cc/2W7P-75KC] [hereinafter April 2016 Minutes] (“One reason for deferring action was anticipation of the Supreme Court’s decision in the Campbell–Ewald case.”). For example, in Amchem Prods., Inc. v. Windsor, the Court explicitly acknowledges the Committee’s rulemaking efforts on the question of certifying class actions for settlement. 521 U.S. 591, 619 (1997) (“A proposed amendment to Rule 23 would expressly authorize settlement class certification, in conjunction with a motion by the settling parties for Rule 23(b)(3) certification, even though the requirements of subdivision (b)(3) might not be met for purposes of trial. . . . The Committee has not yet acted on the matter. We consider the certification at issue under the Rule as it is currently framed.” (internal quotation marks omitted)).
[50] See Brooke D. Coleman, One Percent Procedure, 91 Wash. L. Rev. 1005, 1050 (2016) (“[T]he one percent procedure players are quite homogeneous, sharing a legal pedigree and sophisticated experience in complex litigation. This expertise is no doubt useful for the areas in which these players practice their craft—as either judge, practitioner, or rule maker—but it also has its risks. That is because group decision making by like-minded individuals does not necessarily lead to optimal results.”).
[51] Danya Shocair Reda, The Cost-and-Delay Narrative in Civil Justice Reform: Its Fallacies and Functions, 90 Or. L. Rev. 1085 (2012); Elizabeth Thornburg, Cognitive Bias, the “Band of Experts,” and the Anti-Litigation Narrative, 65 DePaul L. Rev. 755 (2016).
[52] Thornburg, supra note 51, at 756.
[55] Dana Shocair Reda, What Does It Mean to Say That Procedure Is Political?, 85 Fordham L. Rev. 2203, 2212–13 (2017).
[56] Reda, supra note 51, at 1089.
[57] Patricia W. Hatamyar Moore, The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees, 83 U. Cin. L. Rev. 1083, 1113, 1130–40 (2015).
[58] Joe S. Cecil et al., Fed. Judicial Ctr., Motions to Dismiss for Failure to State a Claim After Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules (2011), https://www.fjc.gov/sites/default/files/2012/MotionIqbal.pdf [https://perma.cc/YKF9-ZQNQ].
[60] Hoffman, supra note 24, at 1537 (“As I previously argued, [r]ather than summarily announcing that the detected effects were not statistically significant, the researchers should have aided transparency and understanding by explicitly discussing how to interpret the study’s results. By not doing so, the study may have led some readers to think that the researchers proved the Court’s decisions had no impact on dismissal practices. Of course, the study proved no such thing, as its lead author has acknowledged.” (internal quotation marks omitted)).
[61] See Alexander A. Reinert, Measuring the Impact of Plausibility Pleading, 101 Va. L. Rev. 2117, 2121 (2015) (“The data presented here strongly support the conclusion that dismissal rates have increased significantly post-Iqbal, and in addition suggest many other troubling consequences of the transition to the plausibility standard.”); Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 Am. U. L. Rev. 553, 599 (2010) (“However, the percentage of 12(b)(6) motions in the Database that were granted with leave to amend increased from 6% under Conley to 9% under Twombly to 19% under Iqbal. The proportion of ‘mixed’ rulings also increased slightly under Twombly to 30% as compared to 28% under Conley, but then declined to 25% under Iqbal. The proportion of motions denied—i.e., plaintiff wins—fell from 26% under Conley to 23% under Twombly to only 18% under Iqbal.”); Patricia Hatamyar Moore, An Updated Quantitative Study of Iqbal’s Impact on 12(b)(6) Motions, 46 U. Rich. L. Rev. 603, 605 (2012) (“The updated results indicate that the relative risk of a 12(b)(6) motion being granted without leave to amend, compared to being denied, was expected to be 1.75 times greater under Iqbal than under Conley, holding all other variables constant, and this increase is statistically significant.”).
[62] See Reinert, supra note 61, at 2151 (finding that the grant rates in employment discrimination and civil rights cases increased by sixteen percent and nineteen percent, respectively, following Iqbal); Hatamyar Moore, An Updated Quantitative Study, supra note 61, at 618 (“In constitutional civil rights cases, even excluding pro se plaintiffs, courts granted 12(b)(6) motions at a higher-than-average rate under Iqbal.”).
[63] Civil Rules Advisory Comm., U.S. Judicial Conference, Minutes April 4–5, 2011, at 31 (2011), https://www.uscourts.gov/sites/default/files/fr_import/Civil-Minutes-2011-04.pdf [https://perma.cc/Z36P-LTX7] [hereinafter April 2011 Minutes].
[65] See supra notes 61–62 and accompanying text.
[66] Lonny Hoffman, Twombly and Iqbal’s Measure: An Assessment of the Federal Judicial Center’s Study of Motions to Dismiss, 6 Fed. Cts. L. Rev. 1, 7 (2011) (“Moreover, saying the observed effects were not statistically significant certainly does not mean that the researchers observed no effects. However, because of the focus on statistical significance, and the occasional use of imprecise language, the study may lead at least some readers to overlook the considerable changes in dismissal practices and outcomes the researchers did observe in comparing dismissal motions and orders before Twombly with motions and orders after Iqbal.”).
[67] Id. (“After Iqbal, a plaintiff was twice as likely to face a motion to dismiss as compared with the period before Twombly, a marked increase in the rate of Rule 12(b)(6) motion activity from the steady filing rate observed over the last several decades. As for dismissal orders, the FJC found that in every case category that was examined there were more orders granting dismissal after Iqbal than there were before Twombly, both with and without prejudice. Most importantly, in every case category examined it was more likely that a motion to dismiss would be granted.”).
[68] The Committee is pressured by the public, including interest groups who want particular amendments to go forward. Or not. See Richard D. Freer, The Continuing Gloom About Federal Judicial Rulemaking, 107 Nw. U. L. Rev. 447, 460–61 (2013) (“One former Reporter concluded that the Committee should ‘listen and count the decibels,’ meaning that it should not act whenever potential revision raises substantial pushback. Such skittishness might embolden interest groups to raise a ruckus simply to get the Committee to forego potential changes.” (quoting Reporter, Memorandum to Civil Rules Committee re Questions About the Rulemaking Process (1989)). Academics have been critical of the Committee’s work. See Richard Marcus, Not Dead Yet, 61 Okla. L. Rev. 299, 299 (2008) (noting that “the crisis clamor [about rulemaking] seems fairly universal among academics”). Finally, the Committee is always subject to congressional will, both when Congress legislates directly in procedure and when it inserts itself into the Rules Enabling Act process. See Freer, supra, at 458–59 (discussing the different ways in which Congress can impact the rulemaking process).
[69] See Reda, supra note 55, at 2222 (“Discovery rules are and will be policy determinations . . . .”); Stephen B. Burbank, Procedure, Politics and Power: The Role of Congress, 79 Notre Dame L. Rev. 1677, 1723 (2004) (describing “a world in which the myth of the neutrality of procedure has been exploded”); see also Robert G. Bone, The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficacy, 87 Geo. L.J. 887, 889 (1999) (“Because procedure has substantive effects and involves controversial value choices, critics argue, rulemaking is ‘political’ and therefore legitimate in a democracy only with broad public participation and accountability.”); Linda S. Mullenix, Hope over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N.C. L. Rev. 795, 823 (1991) (“The public interest critique of procedural rules reflects an ideology that litigation embodies class, race, gender, and economic struggles. The basic theory of public interest partisans is that there are no such things as ‘facially neutral rules.’”); Briana Lynn Rosenbaum, The Legislative Role in Procedural Rulemaking Through Incremental Reform, 97 Neb. L. Rev. 762, 774 (2019) (“Even after the 1988 Amendments to the REA, designed to make the rulemaking process more transparent, representative, and informed, scholars continue to question the notion that the Judicial Conference is a ‘neutral’ body of experts in the area of rulemaking authority. Thus, the Conference has been criticized as too closely aligned with judicial interests, naturally limited by its members’ own personal and professional experiences, undemocratic and unaccountable, unrepresentative, and focused on busywork rather than meaningful change.” (footnotes omitted)).
[70] Reda, supra note 55, at 2223.
[71] Civil Rules Advisory Comm., U.S. Judicial Conference, Minutes March 22–23, 2012, at 41 (2012), https://www.uscourts.gov/sites/default/files/fr_import/CV03-2012-min.pdf [https://perma.cc/K9GK-TFJB] [hereinafter March 2012 Minutes].
[72] Congress revised the Rules Enabling Act in 1988 to require the committees to have open meetings, publicly available minutes and records, and public hearings. Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, 102 Stat. 4642, 4649 (1988) (codified at 28 U.S.C. § 2073(c) (1994)). For a more detailed history of these changes, see Bone, supra note 69, at 902–08.
[73] Lumen N. Mulligan & Glen Staszewski, The Supreme Court’s Regulation of Civil Procedure: Lessons from Administrative Law, 59 UCLA L. Rev. 1188, 1249 (2012) (“Moreover, the Advisory Committee and the Court are likely to be sensitive to reputational considerations . . . .”).
[74] Hatamyar Moore, supra note 57, at 1140 (detailing one exchange between a committee member and a lawyer testifying at an open hearing where the committee member “took umbrage when a plaintiff’s lawyer suggested that it was ‘transparent’ that the proposed changes favored one side over another, but the lawyer was only stating the obvious”).
[75] March 2010 Minutes, supra note 26, at 10.
[76] November 2010 Draft Minutes, supra note 28, at 22 (internal quotation marks omitted).
[77] See Thornburg, supra note 51, at 756–57 (detailing how the Committee is particularly prone to biases due to its expert nature and committee-member backgrounds); Coleman, supra note 50, at 1050–58 (discussing how a more diverse decisionmaking process yields better results).
[78] Patrick Higginbotham, Foreword, 49 Ala. L. Rev. 1, 2 (1997) (observing that the need for the bench, bar, and academy to participate in rulemaking is “kindled by the reality that changes in rules of procedure today immediately engage social policy in ways that tax the dichotomy of substance and procedure . . . .”).
[79] See supra notes 10–78 and accompanying text.
[80] October 2009 Minutes, supra note 1, at 14 (a Committee member asked if “‘negligently’ [was] a legal conclusion, a threadbare recital of an element of the claim that fails the Iqbal pleading test?”).
[81] Brooke D. Coleman, Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, and the Forms, 15 Nev. L.J. 1093, 1107–09 (2015) (discussing the Committee’s deliberations regarding Form 11); A. Benjamin Spencer, The Forms Had a Function: Rule 84 and the Appendix of Forms as Guardians of the Liberal Ethos in Civil Procedure, 15 Nev. L.J. 1113, 1138 (2015) (noting that if the Committee acted on its concern that the form and Iqbal collided by amending the forms, it “would memorialize and embrace the judicial interpretation in question—namely, the pleading standard set forth in Twombly and Iqbal—dashing hopes of convincing the Court to revisit and revise its understanding of pleading doctrine”).
[82] October 2009 Minutes, supra note 1, at 16. The minutes go on to state that “[t]here is plenty of time to proceed deliberately.” Id.
[83] The April 2011 minutes state, “[t]he intense focus on pleading brought on by the Twombly and Iqbal decisions has put the illustrative ‘Rule 84’ Forms back on the agenda.” April 2011 Minutes, supra note 63, at 31–32. By November 2011, a “Forms Subcommittee” had been launched. November 2011 Minutes, supra note 25, at 35–36. The Committee decided to abrogate the rules by August 2013 when it circulated the proposed abrogation for public comment. Comm. on Rules of Practice and Procedure of the Judicial Conference of the U.S., Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure 329, https://www.uscourts.gov/sites/default/files/2013-08-rules_published_for_comment-preliminary_draft_final_0.pdf [https://perma.cc/K8GE-DRB7].
The abrogation took effect on December 1, 2015. Fed. R. Civ. P. 84 (abrogated 2015).
[84] Hoffman, supra note 24, at 1552 (“[I]t is as important for rulemakers to recognize the danger of making changes that would send the wrong signal. On several prior occasions since 2007, rulemakers have discussed the forms in the back of the rulebook, suggesting that it may be time to get out of the forms business. The counsel of those who have recognized that abrogation of forms now could send the wrong message should be heeded. Whatever the deficiencies of the forms may be, this is the wrong time to think about eliminating them from the rulebook.”); A. Benjamin Spencer, Pleading and Access to Civil Justice: A Response to Twiqbal Apologists, 60 UCLA L. Rev. 1710, 1737 (2013) (“I, for one, would pursue the abandonment of plausibility pleading by urging the rulemakers to restore notice pleading and revise other complementary Rules—such as . . . the Official Forms—to develop a more thoughtful, comprehensive, and effective approach to controlling initiation of actions and access to discovery.”); Coleman, supra note 81, at 1108 (“If Form 11 is eliminated, Rule 8 will have necessarily been changed.”).
[85] Coleman, supra note 81, at 1109 (“With the proposed abrogation of the forms, however, the Committee is making a change to Rule 8 . . . .”).
[86] Civil Rules Advisory Comm., U.S. Judicial Conference, Minutes November 2, 2012, at 18–21 (2012), https://www.uscourts.gov/sites/default/files/fr_import/CV11-2012-min.pdf. [https://perma.cc/4ULK-YPXE]; Spencer, supra note 81, at 1136 (listing the provided reasons for abrogating the forms, a list glibly gesturing to Twombly and Iqbal (“the pleading forms live in tension with recently developing approaches to general pleading standards”) while providing six other additional reasons for eliminating the forms (internal quotation marks omitted)).
[87] Civil Rules Advisory Comm., U.S. Judicial Conference, Report of Advisory Committee on Civil Rules 60 (2014), https://www.uscourts.gov/sites/default/files/fr_import/CV05-2014.pdf [https://perma.cc/MW69-N9CP] (“Abrogation is recommended in large part because this Committee has not been able to spare any significant share of its agenda for regular review and potential revision of the official forms. Any careful discharge of this task would demand much time that should not be diverted from more important tasks.”).
[88] Id. at 5 (“To illuminate and constrain the concept of proportionality, the Committee recommended that the factors already prescribed by Rule 26(b)(2)(C)(iii), which courts now are to consider in limiting ‘the frequency or extent of discovery,’ be relocated to Rule 26(b)(1) and included in the scope of discovery. All discovery is currently subject to those factors by virtue of a cross-reference in Rule 26(b)(1), and the Committee was informed that these factors are understandable and work well.”).
[89] Id. at 7 (“The adoption of the proportionality factors in 1983 was followed by amendments in 1993 and 2000 that were designed to encourage courts to enforce them. Despite these efforts, the clear sense of the Duke conference was that a greater emphasis on proportionality is needed.”).
[90] Hatamyar Moore, supra note 57, at 1110–11 (“Despite the Duke Conference’s lack of mandate to change the scope of discovery, the pending amendments will . . . make so-called ‘proportionality’ an element defining the general scope of discovery, rather than a court-imposed limitation on discovery that is otherwise within the general scope.”); Bernadette Bollas Genetin, “Just A Bit Outside!”: Proportionality in Federal Discovery and the Institutional Capacity of the Federal Courts, 34 Rev. Litig. 655, 661–62 (2015) (“The new proportionality standard permits and requires judges to set different boundaries for different types of substantive claims in individual cases. It thus requires judges to make normative choices about the scope of discovery, based on the necessarily incomplete information that will be available in the confines of federal court litigation.”); John J. Jablonski & Alexander R. Dahl, The 2015 Amendments to the Federal Rules of Civil Procedure: Guide to Proportionality in Discovery and Implementing a Safe Harbor for Preservation, 82 Def. Couns. J. 411, 413 (2015) (“The 2015 Amendments can have a dramatic impact if judges and lawyers implement them in the manner intended by the Rules Committee.”). Early studies show that this rule change is having a palpable impact—it is doing what the Committee said it wasn’t trying to do. Steven Baicker-McKee, Mountain or Molehill?, 55 Duq. L. Rev. 307, 336 (2017) (“The collective data and the individual opinions suggest that, at least over the first year, the 2015 amendments have quite successfully fertilized the growth of proportionality. It is unlikely that even the most rabid supporter of these amendments would have predicted that the courts would be applying Rule 26(b)(1) to limit discovery they viewed as disproportional more than four times more frequently in this first year post-amendments. The Advisory Committee and the Supreme Court can certainly check the proportionality box.”).
[91] See supra notes 88–89 and accompanying text.
[92] U.S. Judicial Conference, Procedures for the Judicial Conference’s Committee on Rules of Practice and Procedure and Its Advisory Rules Committees, § 440.20.10 (2011), https://www.uscourts.gov/rules-policies/about-rulemaking-process/laws-and-procedures-governing-work-rules-committees-0 [https://perma.cc/NED8-JNY3] (“Each advisory committee must engage in ‘a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use’ in its field, taking into consideration suggestions and recommendations received from any source, new statutes and court decisions affecting the rules, and legal commentary.”).
[93] Some argue the Committee is too political. Jeffrey W. Stempel, New Paradigm, Normal Science, or Crumbling Construct? Trends in Adjudicatory Procedure and Litigation Reform, 59 Brook. L. Rev. 659, 754–59 (1993) (arguing that the Committee acts in ways dictated by ideology). Others have argued it is too focused on judicial interests. Stephen B. Burbank, Procedure and Power, 46 J. Legal Educ. 513, 515 (1996) (arguing that judges often opt for rules that maximize their own power, even when that might not be the most efficient rule). And still others have argued that the Committee has been too timid in the work it has taken on. Freer, supra note 68, at 468 (“Second, too many of its amendments are busywork. Indeed, much of its recent activity is expressly aimed not at making procedure better, but at tinkering with terminology.”).
[94] Bone, supra note 69, at 955 (“Indeed, the integrity of the institution depends not on dodging hard issues, but instead on developing a clear and persuasive account of the institution’s legitimacy. The future of court rulemaking—indeed, the future of procedural law—hangs on the success of this venture.”).