Responding to Twombly and Iqbal: Where Do We Go from Here?

Abstract:     
As reflected in the title of their article, Inventing Tests, Destabilizing Systems, Professors Clermont and Yeazell contend that the Supreme Court in Twombly and Iqbal invented a “new and foggy test” for judging the sufficiency of a complaint and “have destabilized the entire system of litigation.” As they see it, the Court’s approach is “thoroughly new,” and the Court “effectively creat[ed] a civil procedure hitherto foreign to our fundamental procedural principles.”

Elsewhere, I have offered a more-optimistic take on these cases, emphasizing the connections these decisions have with prior law and suggesting ways in which they can be tamed. See Taming Twombly - Even After Iqbal, 158 U. Pa. L. Rev. 473 (2010). Rather than rehash those arguments here, I instead take up Professors Clermont and Yeazell’s challenging question, “Where Do We Go from Here?” and address several of the proposals made to respond to Twombly and Iqbal by statute or rule amendment.

I also offer my own proposal, which focuses on the core issue at stake in debates about Twombly and Iqbal: should a plaintiff be able to obtain discovery in an effort to uncover evidence without which he or she cannot prevail? My proposal has something to offer plaintiffs, defendants, and the judicial system. I believe it represents an improvement over the current law and better than other proposed legislative and rulemaking responses to Twombly and Iqbal. Surely it could be improved by the perspectives of others in the academy, on the bench, or at the bar. Nevertheless, in deciding where we go from here, stumbling in the right direction is better than standing still or trying to go backwards.

Number of Pages in PDF File: 24

Keywords: Twombly, Iqbal, pleading, Rule 8, Rule 12(b)(6), Federal Rules

JEL Classification: K41

Accepted Paper Series