Pleading Civil Rights Claims in the Post-Conley Era

68 Pages Posted: 30 May 2008 Last revised: 21 Jul 2010

See all articles by A. Benjamin Spencer

A. Benjamin Spencer

Harvard Law School; University of Virginia School of Law

Date Written: 2008


Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous no set of facts formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts that choose to continue to apply a notice pleading standard and that of courts requiring factual substantiation of claims at the pleading stage. The aims of this Article are to clarify the pleading standards that civil rights claimants must now satisfy across the circuits, to assess what impact Twombly has had on shaping those standards, and to evaluate from a policy perspective whether any changes wrought by Twombly in this area are welcome or troubling. This Article was prepared for inclusion in the forthcoming Howard Law Journal Symposium issue entitled Civil Rights and Civil Procedure: The Legacy of Conley v. Gibson.

Keywords: conley, civil procedure, pleading, rule 8, twombly, bell atlantic, plausibility, civil rights

JEL Classification: K40, K41, K49, K10, K00

Suggested Citation

Spencer, A. Benjamin, Pleading Civil Rights Claims in the Post-Conley Era (2008). Howard Law Journal, Vol. 52, No. 1, p. 99, 2008; Washington & Lee Legal Studies Paper No. 2008-30. Available at SSRN:

A. Benjamin Spencer (Contact Author)

Harvard Law School ( email )

1525 Massachusetts Ave.
Cambridge, MA 02138
United States

HOME PAGE: http://

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434.924.3572 (Phone)


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