As noted a couple of days ago, I watched an excellent panel at the annual conference of the Association of American Law Schools noting the 75th anniversary of the Federal Rules of Civil Procedure. The panel was chock full of procedural luminaries, from the moderator — Prof. Arthur R. Miller of Harvard — to its attendees, which included Justice Antonin Scalia, Professor Stephen B. Burbank (Penn), and judges Patrick E. Higginbotham (5h Circuit) and Lee H. Rosenthal (Southern District of Texas).
As one would expect, the discussion focused on the Court’s recent and controversial pleading and class-action jurisprudence. As a whole, the panel was unsurprisingly critical of Iqbal v. Ashcroft‘s so-called “plausibility” standard (a case that Scalia joined but did not write), and had somewhat more nuanced criticisms of the Wal-Mart v. Dukes class-action case that Scalia wrote.
I live-tweeted much of the discussion. Below are some pertinent tweets; more can be found at my Twitter feed. As the Tweets suggest, I am not a fan of the Court’s recent pleading decisions.
Watching Arthur Miller skewer Iqbal in the presence of Justice Scalia must be like watching Fisher beating Spassky. A sight to behold. #aals
— Ira Steven Nathenson (@nathenson) January 5, 2013
Arthur Miller just described the Iqbal test as “yuk-yuk-yuk-yuk!” #aals
— Ira Steven Nathenson (@nathenson) January 5, 2013
Justice Scalia wit on SCOTUS: just like any other appellate court, “you make the decision and move on to the next mistake.” #aals
— Ira Steven Nathenson (@nathenson) January 5, 2013
Judge Rosenthal: Rule 8 is “iconic.” Arthur Miller: Rule 8 an icon “wearing a veil.” #aals
— Ira Steven Nathenson (@nathenson) January 5, 2013
Justice Scalia: what’s driving [Iqbal] is discovery, “especially in an age of electronic discovery.” #aals
— Ira Steven Nathenson (@nathenson) January 5, 2013
Heightened pleading tries to cure problems of information overload in discovery, ignores information asymmetry among litigants. #aals
— Ira Steven Nathenson (@nathenson) January 5, 2013
Miller: original drafters made FRCP “sleek” and “relatively simple.” Burbank: we live in a far more complex era today. #aals
— Ira Steven Nathenson (@nathenson) January 5, 2013
Spirited discussion of pleading and class actions. Justice Scalia mostly quiet. #aals twitter.com/nathenson/stat…
— Ira Steven Nathenson (@nathenson) January 5, 2013
Arthur Miller question to panel: On 75th anniversary of FRCP, “should we start fresh?” #aals
— Ira Steven Nathenson (@nathenson) January 5, 2013
Arthur Miller: asks Justice Scalia to analogize discussion to Shakespeare. Scalia: “Shakespeare wins.” #aals
— Ira Steven Nathenson (@nathenson) January 5, 2013
The panel was stellar, and I think it will be many years before I see such a performance, from Miller’s masterful moderation to the comments of the panelists. As Scalia was on the hot seat, he often seemed quiet, although he did get in a couple of his classic zingers as noted above.
As a side note, I should mention that I’d never met Prof. Miller before. When I caught sight of him at the lunch table, sitting there in silent command without a name tag, I figured he could only be one of two people: an important federal judge or Arthur Miller. (Speaking of legends, I also spotted Sylvester Stallone as I was standing outside of my hotel. Great trip!)
Cross-posted at Infoglut Tumblr.
