Friday, September 11, 2009
Professors Kevin Clermont (Cornell) & Stephen Yeazell (UCLA) have posted on SSRN their article Inventing Tests, Destabilizing Systems, 95 Iowa L. Rev. ___ (forthcoming Mar. 2010). Here's the abstract:
The U.S. Supreme Court has revolutionized the law on pleading, by its suggestive Bell Atlantic Corp. v. Twombly and definitive Ashcroft v. Iqbal. But these decisions do more than redefine the pleading rules: by inventing a test for the threshold stage of a lawsuit, they have destabilized the entire system of civil litigation. The destabilization should rekindle a wide conversation about fundamental choices in designing our legal system. Those choices are debatable. The bone picked with the Court is not that it has taken the wrong path for pleading, but that it blazed a new and unclear path alone and without adequate warning or thought. The point of this Article is that wherever you stand on pleading - even if you think the federal litigation system is wildly out of control with many frivolous suits, or instead if you think the role of pleading should be further purified to eliminate all of its screening function - you should find these recent decisions lamentable.
The Article describes the Court’s choice to shift from minimal notice pleading to a robust gatekeeping regime, and next gives some reasons for thinking the Court’s course on this important matter may promise the worst of both worlds. Then, after some thoughts on the Court’s possible motivation, it briefly offers some ways out of the bog.
This week on Concurring Opinions, Jon Siegel (George Washington) has two very interesting posts on the consequences of Iqbal:
Finally, I'll mention that the folks at Concurring Opinions were nice enough to allow me to post some thoughts on Iqbal last month. See Re-reading Iqbal (a new take on the 12(b)(6) wars), which summarizes some of the arguments I make in my recent article The Pleading Problem. Here's my abstract:
Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This article provides that theory. It develops a new paradigm - plain pleading - as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference. Moreover, it is able to reconcile Twombly and Iqbal with pre-Twombly authority.
PS: Yes, I managed to hold out for an entire 48 hours before indulging in transparent self-promotion as an editor of this blog. The over-under was 42.5.
PPS: Actually, that's the O/U for this weekend's Broncos-Bengals opener. Vegas hasn't yet taken an interest in law professor blogging, which is probably for the best.