Pleading Civil Rights Claims in the Post-Conley Era
A. Benjamin Spencer
University of Virginia School of Law
Howard Law Journal, Vol. 52, No. 1, p. 99, 2008
Washington & Lee Legal Studies Paper No. 2008-30
Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous no set of facts formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts that choose to continue to apply a notice pleading standard and that of courts requiring factual substantiation of claims at the pleading stage. The aims of this Article are to clarify the pleading standards that civil rights claimants must now satisfy across the circuits, to assess what impact Twombly has had on shaping those standards, and to evaluate from a policy perspective whether any changes wrought by Twombly in this area are welcome or troubling. This Article was prepared for inclusion in the forthcoming Howard Law Journal Symposium issue entitled Civil Rights and Civil Procedure: The Legacy of Conley v. Gibson.
Number of Pages in PDF File: 68
Keywords: conley, civil procedure, pleading, rule 8, twombly, bell atlantic, plausibility, civil rights
JEL Classification: K40, K41, K49, K10, K00Accepted Paper Series
Date posted: May 30, 2008 ; Last revised: July 21, 2010
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