Pleading and the Dilemmas of 'General Rules'

31 Pages Posted: 12 Mar 2009 Last revised: 8 Apr 2009

See all articles by Stephen B. Burbank

Stephen B. Burbank

University of Pennsylvania Carey Law School


This article comments on Professor Geoffrey Miller's article about pleading under Tellabs and goes on (1) to use Tellabs, Bell Atlantic Corp. v Twombly, and Iqbal v. Hasty (in which the Court has granted review) to illustrate the limits of, and costs created by, certain foundational assumptions and operating principles that are associated with the Rules Enabling Act's requirement of general rules, and (2) more generally, to illustrate the costs of the complex procedural system that we have created. Thus, for instance, the argument that the standards emerging from Twombly should be confined to antitrust conspiracy cases confronts the foundational assumptions that the Federal Rules are trans-substantive and that they cannot be amended by judicial interpretation. Similarly, in Iqbal, the Government presumably denies that it is calling for the imposition of a heightened fact pleading requirement in cases involving high government officials entitled to an immunity defense because the Court seems to have made it impossible for the judiciary openly to impose such a requirement other than through The Enabling Act Process. The Court may, however, take a different view of the appropriate contextual plausibility judgment than did the lower court in Iqbal. If so, however, the Court would thereby confirm the view that Twombly is an invitation to the lower courts to make ad hoc decisions reflecting buried policy choices. I therefore argue that, if the Court is persuaded that the changes already made to pleading jurisprudence are insufficient to accommodate the needs of the immunity defense, it should forthrightly require fact pleading as a matter of substantive federal common law.

Keywords: Rules Enabling Act, practice and procedure, Tellabs, Federal Rules of Civil Procedure, FRCP, judicial interpretation, fact pleading, substantive federal common law

JEL Classification: K41

Suggested Citation

Burbank, Stephen B., Pleading and the Dilemmas of 'General Rules'. Wisconsin Law Review, Vol. 2009, p. 535, U of Penn Law School, Public Law Research Paper No. 09-08, Available at SSRN:

Stephen B. Burbank (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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