Tuesday, February 26, 2008

Twombly scholarship

The hot topic this submission season appears to be pleading post-Twombly.   Below are the links to and abstracts of some recent works:

  • Professor Lonny Hoffman, Burn Up the Chair with Unquenchable Fire:  What Two Doctrinal Intersections Can Teach Us About Judicial Power Over Pleadings.
    • This paper addresses the most talked about “new” tool for managing the burdens of modern litigation: judicial power to dismiss a case at the pleading stage, before an opportunity for discovery has been afforded.  The issue has generated an astonishing amount of recent attention in courts and academic circles, in large part due to the Supreme Court’s decisions in 2005 in Dura Pharms. Inc. v. Broudo and subsequent decisions in the early summer of 2007 in Bell Atlantic v. Twombly and Tellabs, Inc. v. Makor Issues & Rights, Ltd.  In this paper, I advance the novel argument that any coherent account of judicial pleading power requires going beyond the law of pleading.  I argue that bringing awareness to doctrinal linkages with pleading practice can inform normative thinking about the appropriate limits of judicial power to dismiss a case at the pleading stage, before an opportunity for discovery has been afforded.  To be more specific, I argue that we can profitably focus attention on two doctrinal intersections with pleading practice: one obvious; the other less so, at least at first blush.  The first and most significant point of intersection is with summary judgment.  The second intersection, between Rule 8 and removal, though of less central importance than the linkage with summary judgment, can also help order thinking about appropriate limits on judicial power to enforce pleading norms.  The subject of this work lies at the core of the most predominant thematic tension running through procedural law: balancing access to justice against efficiency.  Ultimately, how and where we mark the scope of judicial pleading power will matter more to prospective claimants (and prospective defendants) than just about any other debate over procedural justice with which courts, rulemakers and theorists have been engaged.  See Phillips v. County of Allegheny, ___ F.3d ___, 2008 WL 305025 (3d. Cir., Feb. 5, 2008) (“Few issues in civil procedure jurisprudence are more significant than pleading standards, which are the key that opens access to courts.”).

  • Prof. Charles Campbell, A "Plausible" Showing After Bell Atlantic Corp. v. Twombly
    • The United States Supreme Court’s decision in Bell Atlantic Corp. v. Twombly is creating quite a stir. Suddenly gone is the famous loosey-goosey rule of Conley v. Gibson “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Now a complaint must provide “enough facts to state a claim to relief that is plausible on its face.” Only decided last May, Bell Atlantic has been cited in over 3,700 cases.

      Already being described as a landmark decision, Bell Atlantic nonetheless has lawyers and judges scratching their heads over the precise pleading standard to apply in its wake. As the Second Circuit (mildly) put it, “Considerable uncertainty concerning the standard for assessing the adequacy of pleadings has recently been created by the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly.” Just what is a plausible “showing that the pleader is entitled to relief” under Rule 8(a)(2)?

      I believe an answer lies in the 26-year-old decision of the Former Fifth Circuit in In re Plywood Antitrust Litigation. Plywood Antitrust requires, at a minimum, that “a complaint . . . contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Already used in more than half the circuits, this standard paraphrases advice found in the venerable WRIGHT & MILLER for nearly 40 years. Properly applied, this “all . . . material elements” standard satisfies Bell Atlantic’s “plausibility” requirement in all respects.

      The Plywood Antitrust pleading standard works well after Bell Atlantic, first, because the Supreme Court referred to the standard, albeit parenthetically, with approval in Bell Atlantic. Second, it does much to harmonize the Federal Rules’ goal of dispensing with pleading technicalities while still requiring enough general factual information about a pleader’s claim to make the notice in “notice pleading” meaningful. Finally, and perhaps most importantly, it gives lawyers, litigants, and courts a standard they can actually use when drafting, or assessing the sufficiency of, pleadings.

  • As a Twombly resource, don't forget about the Twombly bibliography Prof. Scott Dodson posted recently at Prawfsblag.  --RR


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