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Procedure's Ambiguity

71 Pages Posted: 14 Apr 2010 Last revised: 8 Nov 2012

Mark Moller

DePaul University - College of Law

Date Written: May 9, 2010


In 2007 and in 2009, the Supreme Court decided two cases that have proven immensely controversial: Bell Atlantic v. Twombly and Ashcroft v. Iqbal, which interpret the scope of federal pleading standards. Critics claim the decisions drastically alter those standards in a way that denies civil litigants easy access to federal court. But it is far from clear that’s right: In fact, both decisions are so opaquely written that it’s proving hard for lower courts and litigants to figure out what, exactly, they mean. Read one way, Iqbal and Twombly may not change federal pleadings standards much, if at all, in the vast run of cases.

To date, scholars have focused on trying to figure out what the decisions mean. This article takes a completely different tack: It takes their ambiguity as a given and explains why these decisions might have some value precisely because they are ambiguous. Clear procedural standards aren’t always the best procedural standards. Indeed, the article shows, sometimes many groups with a stake in the way courts interpret important procedural rules might rationally prefer that courts leave the meaning of those rules undecided−and unsettled.

Keywords: Statutory Interpretation, Summary Judgment, Pleading, Celotex, Twombly, Iqbal, Judicial Pluralism

Suggested Citation

Moller, Mark, Procedure's Ambiguity (May 9, 2010). 86 Ind. L.J. 645 (2011). Available at SSRN:

Mark Moller (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604
United States

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