Conley as a Special Case of Twombly and Iqbal: Exploring the Intersection of Evidence and Procedure and the Nature of Rules

56 Pages Posted: 14 Apr 2010

Date Written: April 14, 2010


Two recent Supreme Court cases, Iqbal and Twombly, have caused a storm of criticism from civil proceduralists to the effect that the cases have changed the meaning of FRCP 8 outside of the Rules Enabling Act process; undercut the trans-substantive aspirations of the procedural system; breached the procedure-evidence divide inappropriately; will result in idiosyncratic trial court judgments based on bias and caprice; and have imposed an unworkable if not incomprehensible standard of plausibility on pleadings. The storm of criticism is fueled in no small part because of the awkwardness of the Court’s opinions. These cases look considerably different if viewed from an evidentiary perspective, however. Viewed from that perspective, the cases are, first, interesting examples of the complexity in what it means to be a “rule.” The criticism of the cases is premised upon the view that a rule is a static collection of necessary and sufficient conditions that can be applied deductively, but this is false. Rules can be dynamic. And further a static rule applied to a dynamic setting can generate idiosyncratic results that undercut the trans-substantive aspirations of the procedural system. The criticism further neglects that the procedure-evidence divide was breached long before these cases, although understanding that point requires addressing fundamental issues concerning the meaning of “facts” and “evidence.” And the criticism further neglects critical features of the adversarial system that constrain judicial decision making. We employ Iqbal and Twombly as the vehicles to probe these matters and to explain why, at least from the evidentiary perspective, the cases are not the unmitigated disasters the virtual uniform criticism suggests but instead jurisprudentially rich and interesting, and may even be plausibly correct. We say “plausibly” because the correctness of the cases depends on prior views of the purposes of the legal system, over which people can disagree. However, by uncovering some heretofore neglected aspects of the cases, we hope to contribute to a discussion of what those purposes are and how these cases may further or detract from them.

Keywords: evidence, procedure, jurisprudence, rules

Suggested Citation

Allen, Ronald Jay and Guy, Alan E., Conley as a Special Case of Twombly and Iqbal: Exploring the Intersection of Evidence and Procedure and the Nature of Rules (April 14, 2010). Penn State Law Review, Forthcoming. Available at SSRN:

Ronald Jay Allen (Contact Author)

Northwestern University Law School ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8372 (Phone)
312-503-2035 (Fax)

Alan E. Guy

affiliation not provided to SSRN ( email )

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