The fourth and final installment of the great Bloggers versus Burbank debate over whether Congress should act to nullify the Supreme Court Twombly/Iqbal pleading decisions has been posted at PENNumbra. That would be Prof. Burbank's closing argument - or should we say closing shots - because he says we "set up and knock down strawmen," "throw sand in the air," and generally act "[l[ike law students misled by course materials." In short, those of you who already think that we don't know what we're talking about will love it.
Those of you who think we have a point (and are at least a certain age) will read the latest Burbank piece and wonder "where's the beef?"
First, he essentially abandons under fire both of his main prior arguments - that the right to jury trial is being impinged ("issues include. . .access to court, the right to a jury trial"), and that discovery really isn't all that expensive ("not[hing] demonstrated[s]that it has been a problem in more than a small slice of litigation"). He now admits: (1) that there's "no doubt that this Court would reject a Seventh Amendment challenge to plausibility pleading" and (2) pleading "absence of systematic empirical evidence" to the latter - sort of denying that cats purr because we don't know how they do it.
Second, he argues that he should prevail because of who he is ("[e]ven if that [hearing the same old arguments] were true, they have not heard them from the scholar [that is, Prof. Burbank] who wrote the definitive history of the Rules Enabling Act"), rather than what he says. That's called "ex cathedra," and it went out of fashion back when we figured out that Aristotle was wrong and that the Sun really didn't orbit the Earth. Like Aristotle, it's possible to be both "definitive" and incorrect.
Anyway, read it for yourselves and see if Prof. Burbank's got any reason (other than liking plaintiffs more than defendants) for why it was proper for the Court to interpret Rule 8 one way in Conley, but somehow becomes improper for the Court to interpret the same rule another way in Twombly/Iqbal. A Curt Flood rule for rules, perhaps?
In any event, thanks to Prof. Burbank and all the folks at PENNumbra for putting this together. Who knows, if we get the time, we may put together a more thorough critique of Prof. Burbank's latest piece - maybe on PENNumbra (if they let us), or failing that, here.