William McGurn: Terror by Trial Lawyer - WSJ.com: "If you think it's outrageous that Navy SEALs who helped capture one of Iraq's most wanted terrorists now face court-martial on charges they roughed him up, just wait. It may get worse. Tomorrow morning, the Senate Judiciary Committee will hold a hearing on a bill introduced by Arlen Specter (D., Pa.) that would make it easier for terrorists to sue military and federal law-enforcement officials.
That's not Mr. Specter's intent, of course. It would, however, be the effect of a bill that only a trial lawyer could love: the Notice Pleading Restoration Act of 2009. If successful, it would undo a recent Supreme Court ruling that gave us this common sense standard: Before you can sue someone, you have to have a plausible claim they did something wrong.
Mr. Specter, a former trial lawyer, finds the plausibility standard onerous. The reason has to do with the discovery process. Rightly used, discovery allows lawyers from both sides to gain access to evidence—documents, email, depositions, etc.—that support their case. In practice it can be abused, as when lawyers use discovery to go fishing for a case they don't have. And because compliance alone can be expensive and time-consuming, many companies find it cheaper to settle."
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