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We were recently invited to participate in an online debate with Professor Stephen Burbank (Univeristy of Pennsylvania) about whether Congress should act to overrule the pleading standard articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). (Yeah, yeah: We had the negative.)
That debate will be published online in four parts at the University of Pennsylvania Law Review’s online supplement, PENNumbra. Our Opening Statement will be published later this morning. (We’ll publish a post, and give you a link, as soon as it’s up.) Professor Burbank’s Opening Statement will be published one week from today, on December 8. Our Closing Statement will appear one week later (December 15), and Burbank closes on December 22. Burbank’s a smart guy, and the project was a lot of fun (in the same odd way that many of our extracurricular writing adventures could be said to be fun). Stay tuned.
In the meantime, here’s other Iqbal news:
First, Russell Jackson reports on a proposed bill that would statutorily overrule Twombly and Iqbal and write the result of Conley v. Gibson, 355 U.S. 41 (1957), into law. In addition to overruling Twombly and Iqbal, that bill would displace the heightened pleading standard created by the Private Securities Litigation Reform Act and do other damage.
Second, an article in the November 9, 2009 issue of Business Insurance quotes John Rabiej, chief of the support office for the Rules Committee of the Judicial Conference of the United States, as saying that the Towmbly and Iqbal standard “has had ‘little or no impact,’ and that the Committee is ‘very skeptical at this point’ that a problem exists.”
Third, on the other side of the coin, Professor Patricia Hatamyar (St. Thomas, Florida) posts at SSRN “The Tao of Pleadings,” which suggests that Twombly and Iqbal may in fact have increased the percentage of motions to dismiss granted by trial courts.
Finally, the Penn State Law Review is hosting a symposium on Twombly and Iqbal in March 2010 and has issued a call for papers. Details are posted here at the Civil Procedure & Federal Courts Blog.
You’ll surely be reading more on this subject in the coming months.
(In fact, in the coming hours. Look for our Opening Statement in PENNumbra before you head out to lunch.)