35 Pages Posted: 22 May 2010 Last revised: 27 Oct 2010
Date Written: Oct. 26, 2010
This essay tries to convey the meaning of the recent revolutionary cases on federal pleading law. To do so, it refutes the three leading myths about the Twombly and Iqbal cases and thereby establishes these three propositions: First, the Supreme Court has not revived code-based fact pleading. This first conclusion implies that the codes’ law/fact distinction plays no role in screening allegations under the new test for nonconclusoriness, and it also implies that the courts should not apply the new test for plausibility to each allegation but only to the ultimate assertion of liability. Second, we academics must beware of overstating the scope of the new cases. Their holdings apply only to claimants’ pleadings, and indeed only to their allegations on the merits. Third, we must also beware of reading optimistically the opinions’ evident confusions to infer an aimless Court. Its rather steady purpose indicates that the Justices now mean business as pleading revolutionaries.
Keywords: Civil Procedure, Litigation, Pleading
JEL Classification: K41
Suggested Citation: Suggested Citation
Clermont, Kevin M., Three Myths About Twombly-Iqbal (Oct. 26, 2010). Wake Forest Law Review, Vol. 45, Forthcoming . Available at SSRN: https://ssrn.com/abstract=1613327 or http://dx.doi.org/10.2139/ssrn.1613327