The good news: I think the Court might have agreed with academic commentary, and further, might have even responded positively to that commentary. The bad news: This response has nothing to do with the Court’s current docket, but is instead about the Federal Rules of Civil Procedure. Now, stick with me here because I think this is still good (and perhaps exciting) news. As has been covered here, members of the Court have questioned whether academic scholarship practically matters. Here is a place where I believe scholarship maybe, kind of, sort of made a difference.
As mentioned in a previous post and at the Civ Pro Blog, the Supreme Court approved and forwarded amendments to the Federal Rules of Procedure to Congress. This is the penultimate step in the federal rulemaking process. If Congress does not act before December 1, these rules will become law. The discovery amendments have been the controversial focus of the current set of Civil Rule amendments, garnering literally thousands of comments during the rulemaking process. But, I and a number of other scholars criticized the abrogation of Fed. R. Civ. P 84 and the official forms. Our arguments varied, but one thing we all agreed upon was that abrogating Rule 84, and specifically abrogating Form 11, was problematic because of the controversy over pleading requirements following Twombly and Iqbal. In short, deleting Form 11—a form that, according to the Court, remained good law after these cases—might be read as further restricting pleading under Rule 8.
Scholars commented and testified to this effect before the Civil Rules Committee. When considering these comments, the committee repeatedly noted that only academics had criticized this change. In meeting minutes (at p. 558), the Rule 84 subcommittee stated that the change had “support from practitioners” and that “[m]ost of the opposition seems to reflect continuing academic distress with the Supreme Court’s recent pleading decisions.” In the Civil Rules Committee Report to the Standing Committee (p. 60-61), the committee stated that it “has been concerned that most of the opposition to abrogation springs from the academic community.” Yet, in spite of this rather consistent criticism, the committee moved forward with its proposal as originally published.
The Court, however, appears to have agreed with the academics. In its recent approval of the Civil Rule amendments, it changed Rule 84’s Advisory Committee Note to add, in pertinent part, that “[t]he abrogation of Rule 84 does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8.” This is really something. First, I have done some preliminary research, and I cannot find an example of the Court ever modifying an Advisory Committee Note when approving a federal rule of procedure. (If anyone has an example of this happening in the past, please let me know.) Second, the Court’s change directly responds to the academic concern that was raised during the rulemaking process. Now, it could be that the Court arrived at the same conclusion on its own accord. But, it is also entirely possible that the Court agreed with and responded to the consistent academic critique of this change. It is not the exact result that many of us were seeking, but it gives me some hope that our scholarship does, in fact, make a difference…maybe, kind of, sort of.
Posted by Brooke Coleman on May 5, 2015 at 09:42 AM
Comments
In this context, “maybe, kinda, sorta” is about the best we can hope for. Thank you Brooke for your scholarship on the Rule 84 issue. I was a signatory on a couple of the group comments, but your work certainly led the way.
Posted by: Brian Clarke | May 6, 2015 7:35:54 AM