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Lonny Hoffman, Rulemaking in the Age of Twombly and Iqbal, U.C. Davis L. Rev. (forthcoming, 2013) available at SSRN.

The Federal Rules of Civil Procedure are 75 years old this year. Imagine a fete thrown in their honor-mini rule books as party favors, balloons emblazoned with Rule numbers 1-86, and a cake decorated with the words “Just, Speedy, and Inexpensive.”  If there ever where such a party, Lonny Hoffman’s article, Rulemaking in the Age of Twombly and Iqbal, should be the opening toast.  No, his article does not begin with a pithy joke; although, that might be fun. What it does is address the federal civil rulemaking process, an important — but often less discussed — aspect of the civil rules.

Hoffman’s article uses Rule 8’s pleading standard and the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal as an entry point for his discussion of the federal civil rulemaking process.  First, he provides a thorough historical account of Rule 8.  He relies on primary source material and weaves a rich recounting of the original rulemakers’ Rule 8 deliberations.  The original civil rulemaking committee made a choice in Rule 8 by using the word “claim” in the text as opposed to “fact.”  It chose this language for maximum flexibility and minimum technical wrangling.  This much we already knew. But Hoffman’s account reminds us of Rule 8’s origin before summarizing how the civil rulemaking committee treated Rule 8 over time.  What his account tells us is that the rulemakers had multiple occasions to reconsider the policy choices made in the original Rule 8.  He documents how rulemakers confirmed Rule 8 again and again from the 1970s until just before Twombly was decided in 2007.  While the reasoning of each committee varied a bit — some citing the practical difficulty of amending the rule, some questioning the empirical basis for changing the rule, and some arguing that heightened pleading would be antithetical to the rule’s purpose — it is safe to say that, overall, the rulemakers actively decided to keep Rule 8 as it was.

This all changed when Twombly and Iqbal entered the picture.  This is where Hoffman makes a key contribution.  In contrast to the rulemakers’ deliberative rejection of proposed changes to Rule 8 in the pre-Twombly/Iqbal world, Hoffman’s account shows a rulemaking body whose recent behavior is quite different.  He describes three overlapping cycles of response.  First, the rulemakers proceeded with caution because there was little information about how these cases would affect practice.  Second, along with this initial caution, the rulemakers articulated their belief that Twombly and Iqbal would not have much of a practical impact.  Empirical research conducted by the committee and the Federal Judicial Center further girded this status-quo reaction.  Finally, the rulemakers repeatedly stated that even if rule change was warranted, any such change would be futile.  After all, the Supreme Court decided Twombly and Iqbal.  It seemed unlikely that the Court would approve any rule change to the contrary.

Hoffman takes each of these responses in turn.  He agrees that the committee needed to wait and study before making any changes to the rules.  However, once those studies were conducted, Hoffman challenges how the rulemakers understood the information being presented to them.  Hoffman provides an overview of the major FJC study relied on by the committee.  Building on his earlier critique of the study, Hoffman essentially argues that the results of this study were misunderstood — perhaps even over-understood — by the rulemakers.  Hoffman is not flippant in this assessment, nor is he arguing that the rulemakers were not thoughtful and careful.  Hoffman’s point is that the information presented to the committee had its limitations, and it is not clear from the deliberations that the rulemakers appreciated these limits.  For example, the study stated that there was no “statistically significant” increase in the likelihood that a motion to dismiss would be granted after Iqbal.  Hoffman argues that this statement, without the proper context, could be misunderstood by rulemakers as proving that Twombly and Iqbal were not responsible for the notable increase in grant rates.  Without a background in statistics or the proper context and training for the study’s findings, Hoffman argues that the rulemakers were not equipped to fully appreciate the results.

These statistical blind spots affect policy decisions.  Hoffman argues that if the rulemakers worked directly with the FJC (and other researchers) to frame the research, it would force the rulemakers to carefully focus on the normative implications of both the study and its results.  For instance, if the rulemakers knew that the Twombly/Iqbal study had the potential for producing a false positive error — showing that Twombly and Iqbal were not responsible for the higher dismissal rates when in fact they might have been — the rulemakers might have made a different decision in light of this information.  Given the committee’s pre-Twombly/Iqbal policy of concern that heightened pleading would negatively impact access to justice, rulemakers might have understood the study as showing the cases were possibly responsible for the increase in dismissal rates.  Hoffman’s point is that the research and policy trade-offs should not be isolated from one another.

All of this leads to Hoffman’s final argument.  If the rulemakers approached the empirical findings properly and if they continued to hold their past judgment that Rule 8 was fine as it was, then they might be compelled to amend Rule 8 to overrule Twombly/Iqbal.  Hoffman contends that the rulemakers’ concern about futility — while a fair one — should not stop them from trying to change the rule.  There is value in the process, and if the Supreme Court stops a change to Rule 8, then that signals something to the public and to Congress.  The chance that the Court will not like a change, Hoffman argues, should not prevent rulemakers from doing what they think is appropriate.  And to the extent that the Court’s involvement in the process creates a barrier to reform, Hoffman argues that perhaps the time has come to take the Supreme Court completely out of the process and let the Judicial Conference be the sole stop-gap between the rules committee and Congress.  Either way, Hoffman asserts that the committee should act.  Even if it does not get an amendment passed, the committee would still serve its laudable purpose by trying.

In all, Hoffman’s account of federal civil rulemaking is reminiscent of a best friend toasting at his buddy’s anniversary bash.  There are equal parts celebration, reflection, and optimism.  He celebrates the rulemaking process for standing the test of time.  Yet he delicately, but frankly, articulates the bumps in the road.  Hoffman gives advice about how the process might improve and closes his toast with an inspiring call to action.  After reading his article, we should all lift a glass, wish the civil rulemaking process well, and take a celebratory sip of champagne.

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Cite as: Brooke D. Coleman, Celebrating Federal Civil Rulemaking, JOTWELL (May 15, 2013) (reviewing Lonny Hoffman, Rulemaking in the Age of Twombly and Iqbal, U.C. Davis L. Rev. (forthcoming, 2013) available at SSRN),