Document Type

Working Paper

Publication Date

8-3-2009

SSRN Discipline

Legal Scholarship Network; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

Federal pleading standards are in crisis The Supreme Courts recent decisions in Bell Atlantic Corp v Twombly and Ashcroft v Iqbal have the potential to upend civil litigation as we know it What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a halfcentury worth of Supreme Court precedent while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process This Article provides that theory It develops a new paradigm plain pleading as an alternative to both notice pleading which the preTwombly era was widely understood to endorse and plausibility pleading which many read Twombly and Iqbal to endorse As a functional matter this new paradigm is largely consistent with notice pleading but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of referencebrbrThis approach is able to reconcile Twombly and Iqbal with preTwombly authority Indeed a careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading First Twombly and Iqbal did not overrule the most significant preTwombly authorities The only aspect of prior case law that these decisions set aside was a misunderstood fiftyyearold phrase whose real meaning was never called into question Furthermore Iqbals twostep analysis confirms that the problematic plausibility standard employed in Twombly and Iqbal is neither the primary inquiry at the pleadings phase nor a necessary one The threshold issue is whether a crucial allegation in a complaint may be disregarded as conclusory only then does the plausibility of an entitlement to relief become dispositive While there remains some uncertainty about what conclusory means authoritative preTwombly sources the Federal Rules their Forms and Supreme Court decisions that remain good law foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase

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