Putting the 'Notice' Back Into Pleading
29 Pages Posted: 19 Nov 2019
Date Written: November 8, 2019
In the wake of Twombly and Iqbal, courts and commentators have questioned whether notice pleading died with those cases. But what exactly was notice pleading? In this Essay, I argue that the question of whether the Court had “really” abandoned notice pleading in Twombly and Iqbal was a distraction from the fact that a full-bodied doctrine of notice pleading had never really existed in the first place. It had little separate existence from general theories of openness and liberalism, yet the name provided some rhetorical cover by insinuating that the standard was doing some sort of work aside from screening out all but the most outrageous cases. At the margins, notice pleading helped explain why some plaintiffs had adequately stated a cause of action even if the complaint omitted the formal niceties of reciting with precision the law under which those plaintiffs sought relief or the exact elements of a cause of action. But beyond that, courts only engaged in superficial examinations of why notice is important to pleading and what actual notice might look like. The steady association notice with minimalism in this era had profound consequences for pleading doctrine, but also for notice doctrines wholly unconnected with pleading regimes.
This Essay explores the real origins of notice pleading and documents the failure of courts to fully realize that doctrine in the Conley era. At the heart of this failure is a mistaken belief that the minimization of the concept of notice is necessary to bolster the court-access interests of vulnerable plaintiffs. I suggest that a true notice pleading regime might have staved off the advent of plausibility pleading in Twombly and Iqbal and conclude with suggestions for how to reincorporate the lost virtues of notice pleading into our modern pleading regime.
Suggested Citation: Suggested Citation