Burn Up the Chaff with Unquenchable Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power Over Pleadings

Abstract

This paper addresses the most talked about "new" tool for managing the burdens of modern litigation: judicial power to dismiss a case at the pleading stage, before an opportunity for discovery has been afforded. The issue has generated an astonishing amount of recent attention in courts and academic circles, in large part due to the Supreme Court's decisions in 2005 in Dura Pharms. Inc. v. Broudo and subsequent decisions in the early summer of 2007 in Bell Atlantic v. Twombly and Tellabs, Inc. v. Makor Issues & Rights, Ltd. In this paper, I advance the novel argument that any coherent account of judicial pleading power requires going beyond the law of pleading. I argue that bringing awareness to doctrinal linkages with pleading practice can inform normative thinking about the appropriate limits of judicial power to dismiss a case at the pleading stage, before an opportunity for discovery has been afforded. To be more specific, I argue that we can profitably focus attention on two doctrinal intersections with pleading practice: one obvious; the other less so, at least at first blush. The first and most significant point of intersection is with summary judgment. The second intersection, between Rule 8 and removal, though of less central importance than the linkage with summary judgment, can also help order thinking about appropriate limits on judicial power to enforce pleading norms. The subject of this work lies at the core of the most predominant thematic tension running through procedural law: balancing access to justice against efficiency. Ultimately, how and where we mark the scope of judicial pleading power will matter more to prospective claimants (and prospective defendants) than just about any other debate over procedural justice with which courts, rulemakers and theorists have been engaged. See Phillips v. County of Allegheny, F.3d, 2008 WL 305025 (3d. Cir., Feb. 5, 2008) ("Few issues in civil procedure jurisprudence are more significant than pleading standards, which are the key that opens access to courts.").

JEL Classification: K40, K41