Conley v. Gibson’s ‘No Set of Facts’ Test: Neither Cancer Nor Cure

Abstract

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court instituted a “plausibility” standard for assessing the sufficiency of a plaintiff’s complaint – in the process disavowing Conley v. Gibson’s “no set of facts” test. Reaction to the new “plausibility” standard has been generally critical, leading to calls for the reinstatement of the “no set of facts” test. This essay argues that the “no set of facts” test is a legal sufficiency test and thus inapplicable to the factual sufficiency challenges in Twombly and Iqbal. As a consequence, the “no set of facts” test is neither the cancer maligned by Twombly nor the cure to Iqbal. Drawing from this analysis, the essay proposes a new factual sufficiency test that would work symbiotically with the legal sufficiency standard.

Keywords: Pleading, Factual Sufficiency, Legal Sufficiency, Twombly, Iqbal, Conley