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Three Myths About Twombly-Iqbal


Kevin M. Clermont


Cornell Law School

Oct. 26, 2010

Wake Forest Law Review, Vol. 45, Forthcoming

Abstract:     
This essay tries to convey the meaning of the recent revolutionary cases on federal pleading law. To do so, it refutes the three leading myths about the Twombly and Iqbal cases and thereby establishes these three propositions: First, the Supreme Court has not revived code-based fact pleading. This first conclusion implies that the codes’ law/fact distinction plays no role in screening allegations under the new test for nonconclusoriness, and it also implies that the courts should not apply the new test for plausibility to each allegation but only to the ultimate assertion of liability. Second, we academics must beware of overstating the scope of the new cases. Their holdings apply only to claimants’ pleadings, and indeed only to their allegations on the merits. Third, we must also beware of reading optimistically the opinions’ evident confusions to infer an aimless Court. Its rather steady purpose indicates that the Justices now mean business as pleading revolutionaries.

Number of Pages in PDF File: 35

Keywords: Civil Procedure, Litigation, Pleading

JEL Classification: K41

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Date posted: May 22, 2010 ; Last revised: October 27, 2010

Suggested Citation

Clermont, Kevin M., Three Myths About Twombly-Iqbal (Oct. 26, 2010). Wake Forest Law Review, Vol. 45, Forthcoming . Available at SSRN: http://ssrn.com/abstract=1613327 or http://dx.doi.org/10.2139/ssrn.1613327

Contact Information

Kevin M. Clermont (Contact Author)
Cornell Law School ( email )
Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-5189 (Phone)
607-255-7193 (Fax)
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