Congress to Everyone: More Lawsuits!

Here's a preview of a post I'll be putting up on The Modern Archivist in the next couple of days. Shoot me your thoughts!

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In 2007 and 2008 the Supreme Court made two rulings the plaintiff's bar could not stomach, Ashcroft v. Iqbal and Bell Atlantic v. Twombly.  Lisa Rickard from Townhall.com interprets the two cases stating the Supreme Court aimed to establish that "plaintiffs should not sue someone and subject a defendant to the costs and burdens of litigation if there is no plausible basis for their claims." Seems pretty reasonable.

But last November, Representative Jerrold Nadler from New York, introduced H.R. 4115: Open Access to Courts Act of 2009. The law:

Prohibits a U.S. district court from dismissing a complaint: (1) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief; or (2) on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable interference that the defendant is liable for the misconduct alleged.

In effect, Mr. Nadler aims to open the floodgates of litigation by imposing the burden on the defendant to prove "...beyond doubt that the plaintiff can prove no set of facts in support of the claim..." In an era of ever increasing litigation, with docket's backed up for years, frivolous lawsuits around every corner, and with people even suing themselves...it may be wise to continue to use a judge's discretion when there exists no plausible basis in a case.

Should the law pass, there would be no barrier to entry for potential litigation. The average person could play the Lawsuit Lottery: posting frivolous lawsuits until a corporation settles under the weight of potential discovery. Perhaps, if plaintiffs were penalized with the cost of litigation in the event they lose, the liability would give them adequate exposure to litigation risk and mitigate frivolous lawsuits. But the way the system is right now, H.R. 4115 will only exacerbate an already cramped situation.