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The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience


Henry S. Noyes


Chapman University, The Dale E. Fowler School of Law

May 31, 2011

Villanova Law Review, Vol. 56, No. 5, 2012

Abstract:     
With its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief...will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand the meaning and application of judicial experience. The requirement that district courts apply judicial experience to resolve a motion to dismiss is a new part of the federal pleading regime, just like the new plausibility standard. Second, the application of judicial experience – as intended by the Supreme Court – requires district courts to consider information and evidence beyond that alleged in the complaint when resolving a motion to dismiss. Third, and contrary to conventional wisdom, the Supreme Court does not intend the application of judicial experience to involve a subjective analysis of the plausibility of a claim. Instead, the Supreme Court intends district courts to consider a larger, objective body of experience – beyond the subjective experience of any particular district court – with similar factual scenarios. Fourth, the Supreme Court anticipates that the application of judicial experience will require district courts to develop a common law of pleading standards that will vary with the type of claim, the type of claimant, the type of defendant and the alleged factual scenario. The Court has expressly denied that plausibility “require[s] heightened fact pleading of specifics,” but what plausibility means is informed by judicial experience. Sometimes plausibility requires more convincing facts (not more specific facts). Finally, I argue that this new pleading regime that requires the application of judicial experience at the pleading stage – even where it is based on objective information – is inappropriate and inconsistent with the adversarial nature of litigation.

Number of Pages in PDF File: 44

Keywords: Iqbal, Twombly, Pleading, Conley, 12(b)(6), Motion to Dismiss, Judicial Experience, Plausibility, Plausible, Complaint

JEL Classification: K4, K40, K41, K10

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Date posted: June 2, 2011 ; Last revised: May 1, 2012

Suggested Citation

Noyes, Henry S., The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience (May 31, 2011). Villanova Law Review, Vol. 56, No. 5, 2012. Available at SSRN: http://ssrn.com/abstract=1856309 or http://dx.doi.org/10.2139/ssrn.1856309

Contact Information

Henry S. Noyes (Contact Author)
Chapman University, The Dale E. Fowler School of Law ( email )
One University Drive
Orange, CA 92866-1099
United States
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