Pleading as Information-Forcing
Law and Contemporary Problems, Vol. 75, No. 1, p. 1, 2012
36 Pages Posted: 13 Mar 2012
Date Written: March 12, 2012
Academics, judges, and practitioners have devoted much attention to the potential impact of the federal pleading standards announced in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Many have criticized Iqbal and Twombly on procedural, substantive, and policy grounds. And although most everyone agrees that the cases mark a break with past liberal pleading rules and have changed pleading practice, there is little agreement about precisely how the cases have affected ultimate outcomes. Indeed, there is much confusion about what exactly the new rules require of a pleader.
In this Article, I argue that the confusion can be traced in large part to two related errors, unrecognized to date by commentators. The first error is simple but subtle: when the Court announced Iqbal and Twombly, it used old language in new ways and in a new context. The Court rested its decisions on a particular understanding of the words “conclusory” and “plausible,” but did not acknowledge that before Iqbal and Twombly those words each had specific meanings in procedural jurisprudence. The old meanings did not jibe with how the Court used them in its new decisions; overnight the words “conclusory” and “plausible” meant something new in pleading and lower courts were left to sift through the rubble. Second, and relatedly, Iqbal and Twombly implicitly make pleading something of an information-forcing regime. Yet the Court did not rest its shift in emphasis on any of the justifications that the law typically relies upon for information-forcing rules. Here, I provide a taxonomy of some of the classic justifications for information-forcing rules and show that they do not map easily onto pleading.
There are dangers inherent to both of these types of errors. When the Court uses legal terms with established meaning in a new way without any acknowledgment, it forces lower courts to attempt to reconcile apparently conflicting Supreme Court precedent with little guidance. It should be no surprise, then, that many judges at the district court and appellate level express frustration at applying the Court’s new decisions. And when the Court blindly imports an information-forcing regime into a context that calls for more nuanced evaluation, it increases the risk that governing doctrine will become even less coherent. I conclude, therefore, with modest suggestions for adhering to Iqbal and Twombly while minimizing this risk of incoherence
Keywords: pleading, Iqbal, conclusory, plausible, civil procedure, information-forcing
Suggested Citation: Suggested Citation