Sir Issac Newton's Third Law of physics teaches us that every action causes an equal and opposite reaction.
But unlike the physical laws of motion, the law of today's Washington politics seems to be telling us that every action creates an opportunity for a disproportionate reaction, one that can reward special interests while having a profound impact on our nation.
In 2007 and 2008, the Supreme Court's actions in a pair of decisions ( Ashcroft v. Iqbal and Bell Atlantic v. Twombly ) has triggered a lopsided legislative reaction from the trial bar and their allies which, if successful, will greatly expand the number of costly junk lawsuits that could seriously injure an already fragile economy.
The Notice Pleading Restoration Act of 2009 (S. 1504) and its House companion, the Open Access to Courts Act (H.R. 4115), embodies an effort by some in Congress - working at the behest of the plaintiffs' bar - to legislatively repeal these two opinions which stood for an unremarkable and commonsense legal proposition: plaintiffs should not sue someone and subject a defendant to the costs and burdens of litigation if there is no plausible basis for their claims.
Proponents of this bill claim that Iqbal and Twombly marked a radical "sea change" in federal procedural law and that a generation of plaintiffs will be barred from seeking redress for their injuries because they are now subject to a universal heightened pleading standard in federal court.
Nothing could be further from the truth. The reality is that the Iqbal and Twombly decisions represent an outgrowth and endorsement of a vast body of lower federal court precedent governing federal pleading standards for over five decades. These lower court standards represent the very rules of procedural law that any first year law student learns in civil procedure: plaintiffs cannot advance complaints containing "bald assertions," "unsupported conclusions" and "legal conclusions."
Lisa A. Rickard serves as president of the U.S. Chamber Institute for Legal Reform (ILR), where she provides strategic leadership to ILR's comprehensive program aimed at changing the legal culture that has resulted in our nation's litigation explosion.
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