Monday, January 25, 2010
I've been guest-blogging over at Concurring Opinions, and I have a few posts discussing how courts ought to make sense of federal pleading standards after Ashcroft v. Iqbal, what lower courts are actually doing, and the bills now pending in Congress to legislatively override Iqbal. Here are the links to Part 1, Part 2, and Part 3.
These posts summarize and build on some of the arguments in my article, The Pleading Problem, 62 Stanford L. Rev. ___ (forthcoming May 2010), the latest draft of which is up on SSRN. Here's the abstract:
Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal 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 Iqbalwith pre-Twombly authority.
A careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbaldid not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a misunderstood 50-year-old phrase whose real meaning was never called into question. Furthermore, Iqbal's two-step analysis confirms that the problematic plausibility standard employed in Twombly and Iqbalis neither the primary inquiry at the pleadings phase nor a necessary one. The threshold issue is whether a crucial allegation in a complaint may be disregarded as "conclusory"; then and only then does the "plausibility" of an entitlement relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly sources -- the Federal Rules, their Forms, and Supreme Court decisions that remain good law -- foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase.