Plausibility Pleading

Court was unabashed about this change of course: it explicitly abrogated a core element of its 1957 decision in Conley v. Gibson, which until recently was the bedrock case undergirding the idea that ours is a system of notice pleading in which detailed facts need not be pleaded. Departing from this principle, the Court in Twombly required the pleading of facts that demonstrate the plausibility of the plaintiff\u27s claim. This Article explicates and offers a critique of the Court\u27s new jurisprudence of plausibility pleading. The Court\u27s new understanding of civil pleading obligations does not merely represent an insufficiently justified break with precedent and with the intent of the drafters of Rule 8. It is motivated by policy concerns more properly vindicated through the rule amendment process, it places an undue burden on plaintiffs, and it will permit courts to throw out claims before they can determine their merit. Ultimately, the imposition of plausibility pleading further contributes to the civil system\u27s long slide away from its original liberal ethos towards an ethos of restrictiveness more concerned with efficiency and judicial administration than with access to justice. I fear that every age must learn its lesson that special pleading cannot be made to do the, service of trial and that live issues between active litigants are not to be disposed of or evaded on the paper pleadings.—Charles E. Clar

Due Process and Punitive Damages: The Error of Federal Excessiveness Jurisprudence

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Policing Diversity: Lessons from Lambeth

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Pleading in State Courts After Twombly and Iqbal

In parts I and II of his paper, Professor Spencer introduces the concept of “notice pleading” and contrasts it with the fact-pleading regime that existed before the adoption of the Federal Rules of Civil Procedure. The 1938 rules included the well-known provision that a pleader need provide only “a short and plain statement of the claim showing that the pleader is entitled to relief.” In a line of decisions extending to 2002, the United States Supreme Court underscored the liberality of the federal courts’ ordinary pleading standard, stating notably in Conley v. Gibson in 1957 that a complaint should not be dismissed unless “no set of facts” could establish the pleader’s entitlement to relief. In part III, Professor Spencer analyzes the Supreme Court’s more recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, in which it abrogated the Conley “no set of facts” standard, added a requirement of “plausibility,” and called for courts to employ a “twopronged approach” to their review of pleadings, in which allegations that are merely conclusory are set aside and the remaining allegations are examined for sufficient plausibility. The effect of these two decisions, Professor Spencer observes, appears to be to set aside the federal courts’ 70-year-old notice pleading regime in favor of requiring parties to plead specific facts if they hope to avoid dismissal. Part IV discusses the reactions to Twombly and Iqbal of the lower federal courts. Although a few decisions appear to resist the new regime, the Courts of Appeals generally have accepted that the Supreme Court now requires factual details in complaints. Civil rights, antitrust, RICO, and securities fraud cases are among the substantive areas hit hardest by the new approach. Professor Spencer asks whether federal district courts may take Twombly and Iqbal as justification to require a higher level of pleading even if parties can’t reach a higher level of specificity prior to discovery―and may even be tempted simply to dismiss complaints that they believe are weak or lack merit. In part V, Professor Spencer examines the impact of Twombly and Iqbal within state jurisdictions, which fall roughly into two groups―the majority of states whose civil procedure systems “replicate” the federal rules, and those that vary from the Federal Rules in some significant way. In the three years since Twombly was decided, courts in 14 of the “replica” states have had occasion to reexamine their pleading standards. Seven replica state courts have declined to follow the federal move in the direction of plausibility pleading, but only two so indicated through their states’ highest courts. The courts in the other seven replica states that have addressed these cases appear to have embraced the fact-pleading requirement, including the highest courts in five of those states. In the non-replica states, there has been little response from the few that use notice pleading, and there can be little expectation that the remaining states whose courts already use fact pleading will be significantly impacted by the new federal regime. The resulting box score is 24 states for tighter pleading and 27 apparently maintaining notice pleading. The normative question of how states should respond to Twombly and Iqbal remains, and Professor Spencer outlines a number of considerations that he suggests state policymakers should address, including matters of policy, practicality, and doctrine

Iqbal and the Slide Toward Restrictive Procedure

Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscores the substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal’s factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits judges to reject pleadings based on their own predilections or “experience and common sense.” Such an approach undermines consistency and predictability in the pleading area and supplants, in no small measure, the traditional fact-finding role of the jury. Second, the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Thus, although Iqbal ultimately does not go much further than Twombly in reshaping civil pleading standards, the decision is an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years

Pleading Civil Rights Claims in the Post-Conley Era

Much has been made of the Supreme Court\u27s recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court\u27s decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson\u27s famous no set of facts formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts choosing to continue to apply a notice pleading standard and that of courts requiring factual substantiation of claims at the pleading stage. The aims of this Article are to clarify the pleading standards that civil rights claimants must now satisfy across the circuits, to assess what impact Twombly has had on shaping those standards, and to evaluate from a policy perspective whether any changes wrought by Twombly in this area are welcome or troubling

Class Actions, Heightened Commonality, and Declining Access to Justice

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are questions of law or fact common to the class. Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are central to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but it also is at odds with the historical understanding of commonality in both the class action and joinder contexts. The Court’s articulation of a heightened commonality standard can be explained by a combination of its negative view of the merits of the discrimination claims at issue in Dukes, the conflation of the predominance requirement with commonality, and the Court’s apparent penchant for favoring restrictive interpretations of procedural rules that otherwise promote access. Although an unfortunate consequence of the Dukes Court’s heightening of the commonality standard will be the enlivening of challenges to class certifications that otherwise would never have been imagined, this Article urges the Court to reject heightened commonality and read Rule 23 in a manner that remains true to the language and history of the common question requirement