Back to the bad old days of notice pleading?

by Walter Olson on July 24, 2009

At Point of Law, I take up a topic dear to my heart that has flared up into headlines for the first time in, well, practically forever.

{ 2 comments }

1 wfjag 07.24.09 at 5:39 pm

I noted that Sen. Spector (D, R or I –depending on which appears adventageous at the moment, PA) is introducing a bill to over-rule Twombly. See Specter Proposes Return to Prior Pleading Standard, July 23, 2009, http://legaltimes.typepad.com/blt/2009/07/specter-proposes-return-to-prior-pleading-standard.html

Undoubtedly this has nothing to do with the large campaign contributions he receives from the plaintiff’s bar.

However, how does he reconcile this with 28 USC § 2072(a):

“The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals.” ?

Or, is there a secret “except for Rule 12, Fed. R. Civ. Pro. motion practice” caveat to that statute?

2 bfs 07.25.09 at 12:46 pm

If the bill is passed, it becomes a statute, and amends or repeals any earlier statute on the subject, so what does it matter that there is an existing statute that conflicts with it?

As I recall, about 40 years ago there was a similar dispute in Georgia, when the legislature enacted court rules, the Georgia Supreme Court declared that the legislature did not have the power to do that and those rules were not rules of court. (However, knowing where power lay, the court adopted rules identical to the code as the official rules).

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