Plausible Answers and Affirmative Defenses

The United States Law Week, Vol. 79, No. 2271, 2011

6 Pages Posted: 4 Apr 2011

See all articles by Eric S. Janus

Eric S. Janus

Mitchell Hamline School of Law

Thomas Tinkham

Mitchell Hamline School of Law

Date Written: March 29, 2011

Abstract

Our federal courts have introduced a degree of uncertainty in the law of pleading that ought to be resolved with a clear decision about the scope of Twombly and Iqbal. We write to set forth what we believe are the overwhelming arguments in support of the developing majority view: pleading standards should not distinguish between plaintiffs and defendants, or between pleadings asserting and pleadings defending against a claim. Proponents of the minority view make policy arguments grounded in the asserted realities of litigation, leveraging small textual differences between Federal Rule of Civil Procedure Rule 8(a) and 8(c). But the sounder position adopts an even-handed symmetry in pleading. Since there is a paucity of literature on this subject, we write to urge courts to adopt the current majority position and eliminate this uncertainty.

Keywords: pleadings, affirmative defenses, Rule 8(a), Twombly, Iqbal, notice pleading, civil procedure, plausibility, federal rules, litigation

Suggested Citation

Janus, Eric S. and Tinkham, Thomas, Plausible Answers and Affirmative Defenses (March 29, 2011). The United States Law Week, Vol. 79, No. 2271, 2011, Available at SSRN: https://ssrn.com/abstract=1800367

Eric S. Janus (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN Minnesota 55105-3076
United States
6126954928 (Phone)
6126954928 (Fax)

Thomas Tinkham

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

HOME PAGE: http://www.wmitchell.edu/academics/faculty/Tinkham.asp

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