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FRCP 8 Pleading: Supreme Court Doctrine 1957-2011

1 Pages Posted: 8 Nov 2013 Last revised: 11 Apr 2014

Scott Dodson

University of California Hastings College of the Law

Colin P. Starger

University of Baltimore - School of Law

Date Written: November 6, 2013

Abstract

Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal are the most important pleadings decisions the Supreme Court has ever issued. Yet the voluminous commentary on these decisions has tended to gloss over the complicated genealogy of the Court's pleadings decisions from Conley v. Gibson to today. In particular, a number of under-appreciated cases, including Associated General, Papasan, and Broudo, laid foundation for the breakout Twombly decision. Commentary has further tended to elide subsequent cases, which appear to move away from Twombly and Iqbal, at least in result.

We map Twombly and Iqbal, along with their progenitors and their progeny, over time. Our depiction reveals that, prior to 2005, the Court maintained a relatively consistent adherence to very liberal pleading, with one outlier (Papasan), which was not cited during this time. From 2005 to 2009, the Court's pleading standards became stricter. Twombly resurrected Papasan and questioned many of the prior decisions, and Iqbal represents the nadir of pleading liberality. The one outlier is Erickson, which is potentially distinguishable as a pro se case. In 2011, however, the Court seemed to relax pleading again, upholding complaints in two cases, Matrixx and Skinner. Skinner even cited to the 2002 case of Swierkiewicz but not to either Twombly or Iqbal.

This map is a single-page version of a more extended and traditional article available here: http://ssrn.com/abstract=2422160.

A video presentation derived from the same mapping software is available on Vimeo as #89845875.

Keywords: Twombly, Iqbal, Twiqbal, pleading, Rule 8, Conley, Swierkiewicz, Papasan, Broudo, Matrixx, Skinner, plausibility

Suggested Citation

Dodson, Scott and Starger, Colin P., FRCP 8 Pleading: Supreme Court Doctrine 1957-2011 (November 6, 2013). Available at SSRN: https://ssrn.com/abstract=2351073 or http://dx.doi.org/10.2139/ssrn.2351073

Scott Dodson (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-581-8959 (Phone)

HOME PAGE: http://https://www.uchastings.edu/faculty-administration/faculty/dodson/index.html

Colin P. Starger

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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