Testifying at a congressional hearing last fall on federal court pleading standards, Arthur R. Miller of NYU Law School, a leading authority on American civil procedure, recounted the steady movement of case disposition earlier and earlier in a case, concluding that the only step left is to “shoot plaintiffs before they come into the courthouse.” While he may have been exaggerating, there is no doubt that plaintiffs have a harder time surviving a motion to dismiss these days. What Miller called a “philosophical sea change” has taken place in American civil procedure, culminating in two recent Supreme Court decisions.
Justices Change the Rules
Ever since the Supreme Court’s 1957 opinion Conley v. Gibson , a complaint in federal court could not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Over the years, this “no set of facts” standard has been steadily eroded. In 2007, the Supreme Court retired it once and for all.
