The Pleading Problem

Abstract:     
Federal pleading standards are in crisis. The Supreme Court's 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 half-century 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 pre-Twombly 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 reference. Moreover, it is able to reconcile Twombly and Iqbal with pre-Twombly authority.

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 pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a 50-year-old phrase that the Supreme Court had never taken literally and was not in any sense the foundation of the Court's key notice-pleading precedents. Furthermore, Iqbal's two-step analysis confirms that the much-critiqued 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"; then and only then does the "plausibility" of an entitlement relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly 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.

Keywords: 12(b)(6), Rule 8, Twombly, Bell Atlantic, Iqbal, Ashcroft, motion to dismiss, pleading, notice, conclusory, plausible, plausibility

JEL Classifications: K10, K19, K40, K41

Accepted Paper Series