Inventing Tests, Destabilizing Systems

Abstract:     
The U.S. Supreme Court revolutionized the law on pleading by its suggestive Bell Atlantic Corp. v. Twombly and definitive Ashcroft v. Iqbal. But these decisions did more than redefine the pleading rules: by inventing a foggy test for the threshold stage of every lawsuit, they have destabilized the entire system of civil litigation. This destabilization should rekindle a wide conversation about fundamental choices made in designing our legal system.

Those choices are debatable. Thus, the bone this Article picks with the Court is not that it took the wrong path for pleading, but that it blazed a new and unclear path alone and without adequate warning or thought. This Article argues that wherever you stand on pleading—whether you think the federal litigation system is wildly overburdened with frivolous suits, or whether you think the role of pleading should be further purified to eliminate its screening function entirely—you should find these recent decisions lamentable.

The Article describes the Court’s choice to shift from minimal notice pleading to a robust gatekeeping regime, and next gives some reasons for thinking the Court’s course on this important matter may promise the worst of both worlds. Then, after some thoughts on the Court’s possible motivation, it briefly offers some ways out of the bog.

Keywords: civil procedure, pleading

JEL Classifications: K41

Accepted Paper Series