Document Type

Working Paper

Publication Date

3-27-2016

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; Law & Society: Public Law eJournals; Legal Anthropology eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

The Supreme Courts 2007 decision in Bell Atlantic Corp v Twombly and its 2009 decision in Ashcroft v Iqbal unleashed a torrent of scholarly reaction Commentators charged these decisions with adopting a new pleading regime plausibility pleading that upended the noticepleading approach that had long prevailed in federal court Whether a complaint could survive a motion to dismiss "” it was argued "” now depends on whether the court found the complaint plausible allowing courts to secondguess a complaints allegations without any opportunity for discovery or consideration of actual evidence Lower courts began to cite Twombly and Iqbal at a remarkably high rate and empirical work revealed their effect on both dismissal rates and litigant behaviorbrbrAlthough Twombly and Iqbal were troubling on many levels the rise of a newly restrictive form of plausibility pleading was not inevitable There was "” and still is "” a path forward that would retain the noticepleading approach set forth in the text of the Federal Rules themselves and confirmed by preTwombly case law This Article describes this reading of Twombly and Iqbal and explains how more recent Supreme Court pleading decisions are consistent with this understanding It is crucial however that these postIqbal decisions and the approach to pleading they reflect receive the same attention that accompanied Twombly Iqbal and the rise of plausibility pleading Otherwise the narrative that Twombly and Iqbal compel a more restrictive pleading standard may become further entrenched compounding the adverse effects of those problematic decisions

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