An Invitation to the Rulemakers - Strike Rule 9(b)

Pleading is the gateway into the federal courts. Consistent with the goal of merits determination, the Federal Rules of Civil Procedure typically impose only a minimal pleading requirement called notice pleading. An elevated pleading burden requiring greater factual particularity - heightened pleading - is required only for cases involving fraud or mistake. Despite the limited situations requiring heightened pleading under the Federal Rules, federal courts routinely apply heightened pleading burdens to a myriad of cases. This Essay takes aim at the Federal Rule that spawns the widespread use of heightened pleading - Rule 9(b). Finding scant justification for Rule 9(b) even in the fraud context, this Essay makes the case for eliminating heightened pleading for fraud cases by amending the Federal Rules of Civil Procedure. The reasons are simple. Federal Rule of Civil Procedure 9(b) is more the product of historical accident than anything else. The current rationales for its retention are mere rationalizations that create divergent and unworkable standards in the fraud arena. Unfortunately, Rule 9(b) is not content to stay put. Federal courts routinely apply and extend Rule 9(b) heightened pleading into other substantive areas they deem fraud-like. This ad hoc judicial rulemaking is in the face of repeated Supreme Court direction to stop. By striking Rule 9(b), heightened pleading can be contained: a rule-based solution to a rule-created problem.