Beyond Twombly (by Prof. Scott Dodson)

Today, the Supreme Court decided Ashcroft v. Iqbal, a case that continues the recent evolution of pleading standards under Rule 8  mostly begun by a case from two years ago, Bell Atlantic v. Twombly.  As I have written previously here, here, here, here, and here, Twombly affirmed, for the first time, lower court attempts to impose something more than mere notice pleading to a claim governed by Rule 8.  The Supreme Court’s opinion in Twombly was not a model of clarity, however, with Courts of Appeals taking divergent views of the proper pleading standard in its wake.

We at least can applaud Iqbal for clarifying matters.  Twombly’s “plausibility” standard is clearly now a uniform Rule 8 standard, not a standard borne of antitrust law or reserved for certain claims, as some had argued.  And, it is clear that, as I argue in this article forthcoming in the University of Pennsylvania Law Review, the plausibility standard is a “factual sufficiency” standard that depends upon the factual detail and content alleged. 

But, in my view, reaffirming Rule 8’s transsubstantivity with the restrictive pleadings standard of Twombly continues to move pleadings in the wrong direction.  There may be good reasons to depart from transsubstantivity to accommodate the challenges and complexities of particular types of claims.  (For more, see Professor Burbank’s thoughts in this recent article.)  There may also be good reasons to adhere to a liberal pleading standard applied transsubstantively.  (For more, see Professor Spencer’s thoughts in this recent article.)  But applying a restrictive pleading standard transsubstantively will surely result in fewer meritorious cases filed, more meritorious cases dismissed, and less unlawful conduct redressed, particularly for cases in which a less restrictive standard could achieve a better balance between efficiency and justice.  

In addition, Iqbal reintroduces distinctions between conclusions of law, ultimate facts, and evidentiary facts that Rule 8 was designed to obliterate.  The Court casts the distinction between ultimate facts and evidentiary facts in different terminology, namely “conclusory” and “nonconclusory” (or, perhaps, “well-pleaded”), but the inadequacy remains.  As Justice Souter points out in dissent, the distinction between “conclusory” and “nonconclusory” factual allegations is difficult at best and may be fallacious.  

Iqbal may be most remarkable for what it did not say.  It did not cite to Erickson v. Pardus, a per curiam decision issued two weeks after Twombly that many (though not I ) thought might temper Twombly’s reach.  It did not cite to Swierkiewicz v. Sorema N.A, a discrimination case that may now be effectively overruled.  It did not explain how Form 11’s assertion of “negligently drove” is both nonconclusory and plausible.  And it made no mention of notice.  I think it is fair to say that we have entered a new era in pleadings.  Notice is now an aside, probably insignificant in most cases.  Instead, pleadings litigation will focus on factual sufficiency.  As I think the Court made clear, that inquiry will turn on whether each factual allegation is “conclusory” or not and whether all of the nonconclusory allegations state a claim that is “plausible.”

 -          Scott Dodson