A. Benjamin Spencer
Washington & Lee University School of Law
July 30, 2007
Washington & Lee Legal Studies Paper No. 2007-17
Notice pleading is dead. Last Term in Bell Atlantic v. Twombly the Supreme Court dramatically reinterpreted Federal Rule 8(a)(2), which requires a "short and plain" statement of a plaintiff's claim, to require the pleading of facts that demonstrate the plausibility of the plaintiff's claim. The Court was unabashed about this change of course: it explicitly abrogated a core element of the classic case of Conley v. Gibson, a longstanding staple of first-year civil procedure courses and until recently the bedrock case undergirding the idea that ours is a system of notice pleading in which detailed facts need not be pleaded. This Article explicates the Court's new jurisprudence of plausibility pleading and offers a critique that finds fault with several of its components. Beyond representing an insufficiently justified break with its own precedent and with the intent of those who drafted the language of Rule 8, the Court's new understanding of the pleading obligations of plaintiffs is motivated by policy concerns more properly vindicated through the rule amendment process, places an undue burden on plaintiffs to present information not obtainable until at least some discovery has been permitted, and will permit courts to throw out claims before they can determine whether they are indeed groundless. Ultimately, the imposition of plausibility pleading further contributes to the civil system's long slide away from its original liberal ethos towards an ethos of restrictiveness more concerned with efficiency and judicial administration than access to justice.
Number of Pages in PDF File: 59
Keywords: civil procedure, civil practice, federal practice, pleading, federal rules, Twombly, Bell Atlantic, Rule 8(a), Rule 12(b)(6), motion to dismiss, Conley v. Gibson, Leatherman, Sorema, notice pleading, heightened pleading, particularized pleading
JEL Classification: K40, K41, K49, K10, K00working papers series
Date posted: August 2, 2007
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