INTRODUCTION I. THREE FEDERAL RULES A. Rule 56 B. Rule 8 C. Rule 23 II. THREE COMMON CHARACTERISTICS A. Innovative Interpretation B. Practical Impact C. Social Congruence III. "THE WHOLE OF THINGS" A. Market Ideology B. Textualism, Originalism, and Traditionalism C. Judicial Ironies and "Living" Law CONCLUSION INTRODUCTION
With the possible exception of John Marshall, the Justice most frequently quoted by legal scholars is almost certainly Oliver Wendell Holmes, Jr. Following that practice, I begin with an appropriate Holmesian injunction: our "business as thinkers is to make plainer the way from some thing to the whole of things." (1) Accordingly, the purpose of this Article is to suggest that recent Supreme Court decisions construing three Federal Rules of Civil Procedure "make plainer" some salient aspects of a particularly important "whole"--namely, the jurisprudence of the Rehnquist and Roberts Courts.
THREE FEDERAL RULES
In 1986, the Rehnquist Court decided three cases construing Rule 56 that encouraged motions for summary judgment and made it easier for defendants to prevail on these motions. (2) Celotex Corp. v. Catrett allowed defendants to succeed at summary judgment without presenting evidence negating plaintiffs' allegations. (3) Matsushita Electric Industrial Co. v. Zenith Radio Corp. required that plaintiffs' factual allegations meet a plausibility standard and thereby narrowed the reasonable inference rule favoring nonmoving parties. (4) Finally, Anderson v. Liberty Lobby, Inc. imposed a higher evidentiary standard on plaintiffs alleging claims requiring "clear and convincing" proof and, in effect, gave courts the option to weigh plaintiffs' evidence and to find it insufficient to prevent summary judgment. (5)
Subsequently, in Scott v. Harris, the Roberts Court further widened the path to summary judgment by authorizing courts to weigh evidence in a broader range of cases and give dispositive credence to some items while dismissing others. (6) In this case, the Court found that a videotape of the incident in question "blatantly contradicted" the plaintiff's testimony "so that no reasonable jury could believe" him. (7) Compounding the already dubious nature of the Court's decision, a subsequent study found that a significant minority of people viewing the same videotape disagreed with the Court's interpretation, suggesting that the tape contained ambiguities that should have made the issue a jury question. (8) Indeed, strengthening that conclusion, the study also showed that perceptions of the tape's significance varied by race, income level, and political and ideological commitments. (9)
Addressing Rule 8, and going well beyond the restrictive efforts of the Rehnquist Court, the Roberts Court substantially heightened pleading requirements in Bell Atlantic Corp. v. Twombly (10) and Ashcroft v. Iqbal. (11) As it had been understood since its adoption in 1938, Rule 8 embodied the basic principle of "notice pleading" that the Federal Rules established, and it required only "a short and plain statement" of a plaintiff's claim. Consequently, for almost half a century, the Court held that a complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim." (12) Reinterpreting the rule and discarding precedent, Twombly and Iqbal now require plaintiffs to plead facts that show a "plausible" claim and promise a "reasonable" possibility of success. (13)
These decisions not only create a more demanding standard but also invite a relatively subjective application. Judges, Iqbal announced, should apply the higher standard by relying on their "judicial experience and common sense." (14) The subjective nature of the new test and its implicit invitation for courts to intrude even more deeply into jury functions are apparent: in both Twombly and Iqbal, the Court disregarded possible factual scenarios that would have made the defendants' actions unlawful. (15) Strikingly, Iqbal rejected the "plausibility" of the plaintiffs' allegations simply because five of the nine Justices were willing to imagine "more likely explanations" for the defendants' behavior than the unlawful conspiracy that the plaintiff alleged. (16)
Finally, the Roberts Court made the requirements for certifying class actions under Rule 23 more demanding. Wal-Mart Stores, Inc. v. Dukes construed Rule 23(a) to impose on plaintiffs the burden of showing a significantly higher level of "commonality" in an identified class than previously required. (17) Indeed, its method of analysis--probing proposed commonalities for every possible "dissimilarity" that could be teased out-suggested an approach designed to defeat a wide range of class actions at the certification stage.
The Court continued this trend in Comcast Corp. v. Behrend, which relied almost exclusively on Wal-Mart and declared that the "rigorous analysis" required under Rule 23(a) was similarly required under Rule 23(b)(3). (18) More restrictively, it held that the predominance requirement of Rule 23(b)(3) could not be met unless plaintiffs could show that "damages are capable of measurement on a classwide basis" and then rejected the plaintiff's proposed methodology for calculating classwide damages as insufficiently "rigorous." (19)
THREE COMMON CHARACTERISTICS
A Innovative Interpretation
These decisions construing Rules 8, 23, and 56 share three common characteristics. The first is their highly questionable legal foundation. The decisions were not based on changes in the text of the rules or their original meanings. Although the Federal Rules have been amended on numerous occasions, the relevant standards in these three rules have never been substantively altered since their adoption.
The Court's 1986 trilogy of summary judgment decisions came almost a quarter of a century after Rule 56 had been last amended. These 1963 amendments made few changes to the rule and no revisions whatsoever in the standard it had established for granting summary judgment. (20) Thus, the standard stood untouched when the Court issued its summary judgment trilogy in 1986, and no subsequent amendment altered that standard in a way that could justify Scott.
Similarly, the Roberts Court's decisions addressing Rules 23(a) and 23(b)(3) construed language that had not been altered since its initial adoption in 1966. The 1966 amendments rewrote Rule 23(a) to identify characteristics that were "necessary but not sufficient" for class actions and reworked Rule 23(b) to define additional conditions that justified three different types of class actions. (21) One of the principal purposes of the amendments was to make the requirements for class actions less "abstract" and the class action form more widely available. (22) Moreover, the Advisory Committee stated explicitly that, where "questions common to the class predominate," an action under subsection (b)(3) "may remain" as a class action "despite the need, if liability is found, for a separate determination of the damages suffered by individuals within the class." (23) Thus, contrary to the reasoning in Comcast, Rule 23(b)(3) was not intended to require that damages calculations be part of the predominance requirement analysis.
When the 1966 amendments spurred an increasing number of class actions and gave rise to a variety of new problems, Rule 23 was altered to tighten some procedures and ensure greater fairness to class members. (24) However, none of these post-1966 amendments changed the relevant text of subsections (a) and (b). Amendments in 1998 added certain interlocutory appeal provisions, (25) and more substantial changes in 2003 modified subsections (c) and (e) and added new subsections (g) and (h). These latter amendments altered certain timing and notice provisions, deleted language authorizing conditional class certification, expanded the process for review of proposed settlements, and provided for more rigorous scrutiny of class counsel and attorneys' fees. (26) However, none of these amendments altered the requirements of Rules 23(a) and 23(b)(3).
Similarly, the Court's decisions redefining pleading standards under Rule 8 changed the meaning of a textual provision that had never been substantively altered. The few minor amendments to the rule made over the years were consistently identified as "technical" or "stylistic only." (27)
Two conclusions about the Court's recent decisions addressing Rules 8, 23, and 56 are warranted. First, none of the decisions were based on any alterations in either the relevant text of the rules or their original meaning. Indeed, in imposing a plausibility requirement for pleadings, Twombly and Iqbal not only departed from the text and original understanding of Rule 8 but also rejected hundreds of years of legal practice defining the nature of the motion to dismiss for failure to state a claim. (28) Second, the decisions departed from the Court's own precedents. (29) Twombly was particularly blunt, dismissing the Court's long-established interpretation as nothing but "an incomplete, negative gloss" that was "best forgotten." (30) Arthur Miller concluded that the Court's decisions "essentially rewrote Rule 8" while "unilaterally 'rewriting' Rule 56" and that "[n]othing in the language of Rule 23(a)(2), the provision's history, or prior jurisprudence justifies" the Court's conclusions in Wal-Mart. (31)
The changes the Court made in the construction of those rules, moreover, were particularly dubious because the Justices are bound by the Federal Rules as written and adopted. (32) Indeed, the Rehnquist Court repeatedly acknowledged this structural separation-of-powers principle. Any change in Rule 8, it declared unanimously in 1993, "must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." (33) It reaffirmed that principle six years later...