The Myth of Notice Pleading

Abstract

This Article challenges the prevailing rhetoric of notice pleading in the federal courts. By examining the reality of pleading practice in eight diverse substantive areas (ranging from antitrust to defamation, negligence to RICO), a rich continuum of fact-based pleading requirements emerges. The scholarly literature, however, largely ignores what federal courts require under this vast umbrella of "heightened pleading." This Article uncovers narrowly-targeted forms of fact-pleading, more broad-based particularity mirroring the standard used in fraud claims, and even "hyperpleading" - mandating virtually every element of a claim be pleaded with particularity. From this micro-examination of pleading, the Article develops the first contemporary model of pleading based on actual federal practice: the pleading circle. Contrary to the notice pleading myth, current practice is not a simple binary choice: fact-based pleading for fraud; notice pleading for everything else. Rather, there is a spectrum beginning with the factless and universally rejected "conclusory allegation." Simplified notice pleading follows. The varieties of heightened pleading are next with their increasing particularity requirements. Ultimately, pleadings reach the point of prolixity and the same fate as its conclusory cousin. The Article also explores potential explanations for the disconnect between notice pleading rhetoric and reality. One overriding conclusion emerges - notice pleading as a universal standard is a myth.

JEL Classification: K4, K40, K41