Iqbal’s Retro Revolution

Abstract

The Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have revolutionized the law on pleading, by shifting from a liberal notice pleading standard to a new heightened “plausibility” regime. The abundant scholarship about these cases consistently posits that Iqbal’s plausibility standard is completely novel and devoid of any historical precedent. This Article argues that, contrary to this conventional wisdom, although Iqbal is revolutionary (in the sense that it marks a sharp break with what immediately preceded it), the post-Iqbal era is not entirely new. Rather, the current pleading regime bears a sharp resemblance to the turbulent period from 1983-1993, after Federal Rule of Civil Procedure 11 was amended to combat frivolous litigation and before Rule 11 was revised to its current form. Under the 1983 version of Rule 11 – unlike the current rule – sanctions were mandatory, fines were generally payable to the other side, the rule contained no “safe harbor provision” by which an attorney could withdraw an allegedly frivolous pleading with no penalty, and attorneys had to certify that any allegations in the complaint were “well grounded in fact.” Although the “well grounded in fact” language was directed at the sufficiency of the lawyer’s pre-filing investigation and not to the sufficiency of the complaint, courts used Rule 11 to dismiss complaints that were not sufficiently specific, and thereby tightened the liberal pleading standard set forth in Rule 8(a). Indeed, commentators criticized the rule because it created a risk that the threat of the imposition of sanctions would promote a revival of fact pleading that was antithetical to the spirit (if not the letter) of the Federal Rules of Civil Procedure. Does this sound familiar?

The similarities do not end there. In a striking parallel to pleading in today’s post-Iqbal era, courts in the 1983-1993 timeframe examined the “plausibility” of the complaint in determining whether it was sanctionable, and the use of that “plausibility” standard in 1983 produced the same criticisms that Iqbal is receiving today. The standard is too subjective and gives judges too much discretion; it has a “chilling effect” on plaintiffs; and it has a disproportionate effect on certain kinds of litigation – civil rights and employment discrimination cases in particular.

This Article proceeds chronologically. Part I describes pleading from 1938 until 1983 under the notice pleading regime put in place by the drafters of the Federal Rules of Civil Procedure. Part II surveys the harsh features of the 1983 amendments to Rule 11 and the heightened standard it brought to pleading. Part III details the 1993 amendments to Rule 11 that restored the notice pleading regime. Part IV discusses the Twombly and Iqbal decisions and the significant ways in which they changed pleading. Part V then explores the significant similarities between the 1983-1993 era of pleading and the post-Iqbal era including the implications of this historical link.