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Centering the Pleading Pendulum After Iqbal

Posted: 25 Jan 2010  

Julie D. Cromer Young

Thomas Jefferson School of Law

Date Written: January 23, 2010


In 2007, the Supreme Court in Bell Atlantic v. Twombly introduced the concept of plausibility pleading to federal courts and the Federal Rules of Civil Procedure. Under this concept, in order for a complaint to survive a motion to dismiss, the plaintiff had to plead enough facts to make the cause of action plausible to the court. This was a marked departure in the interpretation of Rule 8's "short and plain statement of the claim" from the standard enunciated fifty years before by the Court in Conley v. Gibson. The Conley Court held that to succeed in a motion to dismiss, a defendant must establish that the plaintiff could establish no set of facts that would support plaintiff's allegations after she had pled enough information to put the defendant on notice of the claims against him. Courts and scholars questioned and debated the applicability of plausibility pleading, but in May 2009 the Supreme Court confirmed it in the 5-4 decision in Ashcroft v. Iqbal, causing the U.S. Senate and House to respond with calls to bring back Conley's "no set of facts" language as the required interpretation.

Iqbal forces the federal court system to revisit the debate that it had at the introduction of the Federal Rules more than sixty years ago: Does notice pleading allow a plaintiff too much entry into the court system without facts sufficient to support a cause of action? Before Twombly, the United States was alone among nations in requiring no factual allegations from civil plaintiffs, inviting foreign litigants to seek the U.S. out as a forum. After Iqbal, however, the United States requires a level of specificity in pleadings not even required by nations adhering to systems of civil (as opposed to common-law) adjudication. By attempting to overcorrect the problems inherent in notice pleading, the Supreme Court has created a standard unworkable with the rest of the Federal Rules of Civil Procedure. An out-and-out return to notice pleading, however, may not be the answer.

This Article will examine the history of pleading in the United States and provide an in-depth analysis of the years since Twombly to see whether plausibility pleading allowed plaintiffs the opportunity to be heard in the U.S. federal court system. It considers different Federal Rules of Civil Procedure directly framed around the notice pleadings standard to question any change in the application of those rules. The Article also discusses four types of cases that may have relied on notice pleading in the past: employment discrimination, intellectual property, securities fraud, and pro se litigation. It does so to examine whether plausibility pleading lets plaintiffs effectively frame their claims. Finally, the Article proposes an amendment to Rule 8 and other Federal Rules that avoids a knee-jerk reaction to the problems inherent in plausibility pleading but brings the U.S. federal courts more closely in line with their international common-law counterparts.

The full Article is forthcoming soon.

Keywords: notice pleading, fact pleading, plausibility pleading, motions to dismiss, Conley v. Gibson, Bell Atlantic v. Twombly, Ashcroft v. Iqbal, Federal Rules of Civil Procedure, Rule 8, short and plain statement

JEL Classification: K10, K41

Suggested Citation

Cromer Young, Julie D., Centering the Pleading Pendulum After Iqbal (January 23, 2010). Thomas Jefferson School of Law Research Paper No. 1541208. Available at SSRN:

Julie D. Cromer Young (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4228 (Phone)

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