Taming Twombly: An Update After Matrixx
18 Pages Posted: 6 Dec 2011 Last revised: 21 Jan 2012
Date Written: December 15, 2011
For better or worse, my approach to Twombly and Iqbal has been one of accommodation rather than battle, seeking, in the common law tradition, to assimilate these decisions into the body of law of which they are a part. I have suggested strategies for lawyers to use in response to these decisions. I have also proposed a Rule amendment that I believe meets the primary concerns of both the plaintiff and defense bar. For these efforts, I have been called an optimist - a charge to which I plead guilty. But as far as I can see, accommodation is the only game in town.
While there has been no shortage of legal academics heaping criticism on the Court, there has been a real shortage of scholarship that might help lawyers and judges to avoid the injustices that those critics feared. In this paper, I provide a bit of a status report on the how efforts to tame Twombly and Iqbal are faring. My hope is to convince readers both to try my strategies and to support my proposal - or at least to tell me why not.
Keywords: Twombly, Iqbal, Matrixx, pleading, 12(b)(6)
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