What is the Difference between a Conclusion and a Fact?

22 Pages Posted: 22 Aug 2019 Last revised: 4 Sep 2020

Date Written: August 1, 2019


In Ashcroft v. Iqbal, building on Bell Atlantic v. Twombly, the Supreme Court instructed district courts to treat a complaint’s conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand the elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing “legal conclusions” from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions. This essay, written for a symposium on the tenth anniversary of Ashcroft v. Iqbal, explores the definitional problem with the conclusion-fact distinction and examines how district courts have applied the distinction in recent cases.

Keywords: Iqbal, Twombly, 12(b)(6), pleading, complaint, motion to dismiss

Suggested Citation

Erichson, Howard M., What is the Difference between a Conclusion and a Fact? (August 1, 2019). 41 Cardozo L. Rev. 899 (2020), Fordham Law Legal Studies Research Paper No. 3439489, Available at SSRN: https://ssrn.com/abstract=3439489 or http://dx.doi.org/10.2139/ssrn.3439489

Howard M. Erichson (Contact Author)

Fordham University School of Law ( email )

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