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Terrorists will destroy us all — with notice pleading!

Whenever I read another opinion piece at the Wall Street Journal asserting that the terrorists will get us unless we restrict access to the federal courts, I cringe.  The most recent example is the controversy over a senate bill that would restore “notice pleading.”  Few non-lawyers know what this is, but the WSJ’s hacks are telling us that unless we resolve this controversy in the way they favor, the terrorists will win.

I’m calling bullshit, of course.

The controversy is interesting, but not apocalyptic.  “Notice pleading” means that a person filing a lawsuit must provide a “short and plain statement of the claim” he is making, rather than a detailed presentation of the facts and law entitling him to the court’s relief.  These things are still required, but they’re required at a later stage of the lawsuit.  In 2009 in a case called Ashcroft v. Iqbal, the Supreme Court imposed an additional requirement of “plausibility” on the initial pleadings.

The decision is controversial because, as critics of the decision point out, how is the judge supposed to know whether the claim is plausible until she sees some evidence?  It’s a pretty typical civil-procedure problem, and controversies like this are common.  Sen. Arlen Specter and others have introduced a bill to restore pre-Iqbal notice pleading requirements.  Legal eggheads argue and quibble, as they should.

But now, here comes William McGurn of the WSJ and former speechwriter for Rupert Murdoch and George W. Bush.  He tells us that al Qaeda will be able to manipulate the federal courts if Arlen Specter’s notice-pleading bill becomes law.

We know that al Qaeda operatives are trained to claim abuse when they are captured. If Mr. Specter’s legislation succeeds, what is to prevent them from alleging all sorts of violations so they can go on discovery expeditions against, say, Gen. David Petraeus or Defense Secretary Robert Gates? And how would that affect the ability of these men to prosecute the war?

As an ex-Bush speechwriter, McGurn surely knows that answers to these leading questions would bleed them of their fear-inducing suggestive power.  So he tosses them out without making any attempt at all to provide answers.

Those of his readers that aren’t peeing their pants in fear of terrorists should keep looking for the rest of the story.  Here’s a place to start: according to McGurn, “The U.S. Chamber of Commerce naturally opposes the bill, saying it would impose a hefty “litigation tax” on American business and encourage frivolous lawsuits. But where do the terrorists come in?”

Good question, Mr. McGurn.  Try this: they come in because right-wing hacks like you don’t believe the electorate will support restricting access to the federal courts unless you can scare them with overblown fears of terrorists.  Even though that strategy would be irresponsible and dishonest, it hasn’t seemed to stop you.

In the face of this demagoguery, what’s a citizen to do?  Keep reading, that’s what.  To get the other side of the story, I suggest starting with this letter to Sen. Specter that law professor Michael Dorf posted a few days ago:

Neither the Supreme Court in its recent decisions nor any credible commentator has cited evidence that the traditional regime of notice pleading has led to systematic abuses that cannot be handled through the Rules Advisory Committee process.  Over the last three decades, the Rules Advisory Committee has repeatedly studied allegations of discovery abuse.  It has responded forcefully with extensive changes that have been working well.  The Rules Advisory Committee did not propose the changes wrought by Twombly and Iqbal because it did not think them necessary or useful.

If, however, you’re busy with other things, you could try adopting a rule of thumb that I think is pretty reliable.  Whenever someone at the Wall Street Journal tells you that some policy proposal offers the choice between life-as-we-know-it, and defeat by terrorists, be skeptical.  They’re probably lying.

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