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9/26/2013 7:34:59 PM
Book Review: New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors?
Dodson, Scott, New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors? (Oxford: Oxford Univ. Press, 2013), ISBN 978-0-19-983250-7 (hardcover), xii + 243 pp. (incl. index), $85.00
When we think of the “sexier” Supreme Court rulings, we think of Obamacare, of same-sex marriage, of civil rights—the type that are routinely inflicted on first-year Con Law students. What does not come rushing to mind is civil procedure, and yet, it has its landmarks, too: Erie R.R. Co. v. Tompkins, World Wide Volkswagen, Burger King Corp. v. Rudzewicz, to name but a few. Prof. Dodson would like you to know that two other civil procedure landmarks radically altered the federal practice landscape a few years back--for the worse--and has written a monograph on it. So the argument goes, the effect of these two rulings is to throw out the old “notice pleading” regime established by the Federal Rules and to replace it with New Pleading, which is effectively “fact pleading.” Another effect is to make it substantially easier to dismiss meritorious complaints due to information asymmetry, with concomitant adverse effects on the federal litigant’s access to justice. Although the reader may question the practicality of his proposal for a form of "New Discovery," and part of the work is not strictly necessary to his argument, the depth of the analysis and the valuable history of pleading practice he provides make this a trenchant and engaging treatise worth having.
A little background will help frame Prof. Dodson’s argument. From 1938 to 2007, Fed. R. Civ. P. 8 established the familiar “notice pleading” regime in federal court. In order to pass muster under Rule 8, a complaint needed only to provide sufficient notice to the defendant of the nature of the claim against him. When the Supreme Court addressed the notice pleading standard in Conley v. Gibson, 355 U.S. 41 (1957), it held that dismissal pursuant to Rule 12 (b) (6) for failure to state a claim should not be granted “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.” This “Old Pleading” under Rule 8 reflected a permissive-access policy to the federal courts, as well as a desire to open the doors to discovery. Only rarely should a complaint wither and die at the pleadings stage, and then only for legal insufficiency. Pretrial disposition of a case was more appropriate on summary judgment under Rule 56, after discovery.
Over the intervening decades, there was an explosion of federal litigation, accompanied by calls to rein in rampant discovery, which was overwhelming the resources of parties and the court. Eventually, a system of case management developed, culminating in the Rule 26 (f) discovery plan, and a much closer system of monitoring that helped streamline what had been a potentially overwhelming ordeal. Further discovery limits were imposed in 2000 and 2006.
Then the Supreme Court issued its decision in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), holding that a complaint can be dismissed under Rule 12 (b) (6) for failing to plead facts sufficient to establish the “plausibility” of the claim. Throughout the succeeding two years, there was much academic speculation that Twombly was limited, for policy reasons, to large class-action antitrust cases like it. After all, this was exactly the sort of case which had so bothered commentators since the 1970s—it had the potential to rack up huge litigation costs on the strength of rather vague facts. However, the Court followed up with Ashcroft v. Iqbal, 556 U.S. 662 (2009), a comparatively narrow religious and national-origin discrimination case, which underlined that the plausibility standard established in Twombly was generally applicable. Thus was “New Pleading” born.
New Pleading, explains Dodson, is essentially fact pleading. No longer is a 12 (b) (6) motion limited to the legal sufficiency of the complaint, as established under Rule 8 and Conley. Instead, a Court now must decide the factual sufficiency of the complaint, which raises a serious problem in information-asymmetry cases—i.e., those in which the facts necessary to survive a New Pleading motion to dismiss are in the sole possession of the defendant, such as intent evidence. Dodson’s empirical data comparing motions filed before Twombly and after Iqbal shows that there has been an overall increase in dismissal rates as a function of motions filed, as well as a corresponding increase in fact-based dismissal rates, especially where the plaintiff is unrepresented. Although the Court’s purpose appears to have been to screen non-meritorious cases, Dodson argues that the actual effect has been to screen out meritorious complaints where there is an information asymmetry between plaintiff and defendant, and that this disproportionately impacts civil rights claims. Also, whatever cost savings might have been realized through the screening effect are likely offset by the increase in dismissal filings.
Ultimately, Dodson wants a return to Old Pleading, but acknowledges that, for various political and administrative reasons, this is extremely unlikely. So, instead, Dodson proposes minimizing the adverse impact of Twombly and Iqbal on information-asymmetry cases by instituting a system of what he calls New Discovery. This presuit discovery procedure, used sparingly, would permit plaintiffs to engage in limited discovery designed to determine whether or not they have a claim that can survive the Twombly “plausibility” standard. Gamesmanship would be minimized by tolling the applicable limitations period during the pendency of New Discovery.
As a former practitioner, I found myself wondering how practical New Discovery would be, given the hardball tactics of seasoned litigators. Dodson himself realizes that his solution will be attacked as “naïve” and that his proposals are imperfect ones. Gamesmanship will still occur, and implementing a tolling provision could be “tricky.” I worry that this fix he has devised for dealing with the mess caused by Twombly and Iqbal will be easily frustrated by those who fall back into “old habits.”
From an organizational standpoint, New Pleading in the Twenty-First Century is a bit repetitive. This is basically a double-length law review article, but I think, with some judicious editing, Dodson’s message could have been pared down by as much as a third without undermining its effectiveness. For instance, the entire sixth and final chapter—a comparative analysis of pleading regimes in other countries—is of doubtful utility, since ultimately it doubles back to a state law discussion made in a previous chapter. I honestly think he could have jettisoned Chapter Six and moved his conclusion to the end of Chapter Five. Other points are revisited often throughout the work, perhaps excessively so. Also, the citations are covered entirely in footnotes. The lack of a bibliography may be off-putting to researchers, but there is at least an index.
Although I’m not entirely convinced by his proposals, I think his analysis is sound, and he makes a compelling case for the pernicious effects of New Pleading on access to federal courts. New Pleading in the Twenty-First Century will primarily appeal to civil procedure and federal jurisdiction faculty, but the style is straightforward enough so that federal practitioners won’t be deterred by the turgidity of prose common to academic writing. This work is certainly an important contribution to the continuing debate on New Pleading, and well worth adding to your collection.
David E. Matchen, Jr., is the Circulation/Reference Librarian at the University of Baltimore Law Library, and can see where John Wilkes Booth is buried from his office window.
 Conley v. Gibson, 355 U.S. 41, 45-46 (1957), as quoted in Dodson, supra, at 27.
 Dodson, supra, at 199.
Posted By 9/26/2013 7:34:59 PM
9/26/2013 12:07:31 PM
The September/October 2013 issue of Spectrum is Now Available on AALLNET!
We hope you enjoy the latest issue of Spectrum and encourage you to share your thoughts and feedback using the "comments" box below!
2013 Annual Meeting in Seattle
A collection of photos from a memorable Annual Meeting
Photos by Brant Bender, Brant Bender Photography
Public Relations: Recognizing Excellence
The 2013 AALL Excellence in Marketing Award winners
By Joy Shoemaker
A Customer is a Patron is a Client . . . But Not Really
Naming and what it makes us think about our users
By Carol Ottolenghi
Introducing the Canadian Association of Law Libraries
By Annette Demers and Nancy McCormack
Do Androids Dream of Electric Books?
Thoughts on legal content dissemination and consumption in the digital environment
By James S. Heller
Automated Library Services
One law library's experience
By Alicia Brillon and Valeri Craigle
Would it Kill West . . .
. . . to include the same information on WestlawNext and
Westlaw Classic that it includes in West Reporters?
By Patrick J. Charles
Who Has the Time?
Or why firm librarians don't volunteer for AALL committees
By Sarah K.C. Mauldin
Thoughts for the risk-adverse law librarian
By Galen L. Fletcher
The Tools of Our Trade
The modern world requires that librarians be among the first to exploit digital tools
By Richard Leiter
How can facilitation techniques help us in the workplace?
By Katherine Marshall
From the Editor
I'd Like to Hear From You
By Catherine A. Lemmer
From the President
Beyond Boundaries: Making Connections and Bridging Divides
By Steven P. Anderson
2013 Policy Programs Help Build Knowledge, Advocacy Skills
By Emily Feltren
From the Secretary
Report from the July 2013 Board Meeting and Business Meeting
By Deborah Rusin
The Sustainable Law Librarian
Heading Down the Green Path: How Can We Continue to Improve Our Annual Meeting's Sustainability Efforts?
By David Selden
The Reference Desk
My director has been very generous about celebrating the birthdays of our staff. She always provides a card and arranges for each employee to have his or her favorite cake. However, one colleague always ends up with a little something "extra." I have to say that I'm a little resentful of this, and I'm not the only one. Someone needs to speak up and tell our director how this makes the rest of us feel, don't you think?
By Susan Catterall
Member to Member
In this era of 24/7, do you fully disconnect when you are out of the office on vacation or at a conference?
Views from You
The Fort Worth Water Gardens as seen from the second floor of the Texas A&M University School of Law
Posted By 9/26/2013 12:07:31 PM
9/25/2013 4:23:17 PM
Book Review: Dictionary of Environmental and Climate Change Law
Robinson, Nicholas, Xi, Wang, Harmon, Li, & Wegmueller, Sarah. Dictionary of Environmental and Climate Change Law. Massachusetts: Edward Elgar, 2013. 293 p. Hardcover. $165.00.
This dictionary is the result of a two-year research program involving scholars and post-graduate students at Pace Law School with the cooperation of faculty of law at Shanghai Jiao Tong University in China. Professor Nicholas Robinson of Pace Law School and Professor Wang Xi of Shanghai Jiao Tao spearheaded the work on this dictionary. Inconsistencies in the usage of environmental law terminology, the rapid development of this field of law, and the difficulty understanding some of the complex terminology used in environmental law formed some of the justification for producing a dictionary in this specific area of law. If you have attorneys who practice environmental law, or offer classes in environmental law, I would recommend purchasing a copy.
The editors used several sources of law to compile the terms provided in the dictionary. Professors and academics at Shanghai Jiao Tao identified terms in Mandarin with no readily available definition. Terms defined in agreements ratified by the United States and China were also compiled. Official definitions used by the Environmental Protection Agency and other U.S. agencies, which could be compared to enacted Chinese regulations were also noted. Finally, terms normally used by United Nations Environment Programme or expert bodies were also noted.
The dictionary provides the definitions of terms in English as well as the comparable Chinese Mandarin word and the Pinyin anglicized version of the word. The dictionary ranges from A Horizon (A céng, fǔ zhí duī jī céng) to Zoning Map (qū yù huà fēn tú). Most terms use and are derived from American English. However, terms gathered from official organizations that use British English maintain the British spellings. Many definitions also contain a short citation to the source used to define that term. These short citations, along with the full citation, are also included in the back of the book for purposes of further study. Many of these resources are websites, and understanding the changeability of the internet, the editors provided the date of access to the website. Most of these websites were last accessed in May 2012.
The addition of the Chinese equivalent of the terms as well as the pinyin translation makes this dictionary extremely valuable. Over the past few years I have seen an increase in the number of Chinese students enrolled at the law school where I work (particularly in the LL.M. program). There are many different ways to define terms because there are so many different dialects of Chinese. The fact that this book provides the term in Mandarin as well as in Pinyin at least provides Chinese speakers with the ability to look up the correct term in a Chinese-English dictionary if he/she cannot read and comprehend English.
The highly technical and scientific nature of environmental law makes some aspects of it confusing to grasp to those without a scientific background. This dictionary allows a layman to parse through those hard to understand concepts in environmental law. It also serves as a great resource for those who practice or study environmental law and need a single, easy-to-use ready reference tool.
Deborah Heller is a reference librarian and lecturer-in-law at Arthur W. Diamond Law Library, Columbia Law School.
Posted By 9/25/2013 4:23:17 PM