Wednesday, April 9, 2014

Reinert on the Burdens of Pleading

Alex Reinert (Cardozo) has published on SSRN a draft of his article, The Burdens of Pleading, which will be published in the University of Pennsylvania Law Review. Here is the abstract:

The changes to pleading doctrine wrought by Bell Atlantic v. Twombly and Ashcroft v. Iqbal have been criticized on many grounds. As many commentators have noted, the plausibility pleading doctrine introduced by these cases is consistent with other procedural reforms that have the effect of limiting access of putative plaintiffs to federal civil adjudication. In this Article, I argue that Twombly and Iqbal are more than just the most recent examples of anti-litigation reforms. Plausibility pleading asks federal courts – for the first time since the advent of the Federal Rules of Civil Procedure – to use their "judicial experience and common sense" to assess the likelihood of a claim’s success prior to discovery. But the very characteristics of the procedural changes leading up to Twombly and Iqbal – fewer trials, an increase in private adjudication such as arbitration, pervasive secrecy, and increased use of summary judgment – also make it far less likely that judges will have the experience necessary to reliably apply plausibility pleading. In the absence of relevant information, judges are likely to fall back on heuristics that will take them farther from an accurate decision on the merits. The result, I contend –one that is confirmed by the empirical data available to date – will be an increased dismissal of cases that is essentially random rather than merit-based.

Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink


At the head of Professor Reinart’s challenging article is a quotation from Charles E. Clark: “Our attitude towards pleading formalities will be largely determined by what we expect of the pleadings.” The NEXT sentence (not quoted) is: “In the countries of Continental Europe very little is expected of these documents, and the parties are not bound at the trial by what they have previously said in them.” Might this not be a hint that perhaps—just perhaps—American civil procedure scholars today might take a look at what foreign systems do? Clark, already in 1925 wrote of pleading: “We tend toward the civil law system; we shall probably not reach it for many generations, if at all.” Maybe we should try harder.

Pleading—at least in modern, civil law systems—is NOT about gate-keeping. It IS about guiding cases toward decisions according to law. Think of pleading as you would think of telling your physician where it hurts or your auto mechanic what’s not working in your car.

“Modern” American legal scholars—in procedure and in substantive law—turn their eyes away from foreign experiences from which their predecessors learned. Already in 1821 Justice Story told his contemporaries: “There is no country on earth, which has more to gain than ours by the thorough study of foreign jurisprudence.”

To learn about pleading abroad, read my article “Pleading and Access to Civil Procedure: Historical and Comparative Reflections on Iqbal, A Day in Court and a Decision According to Law,” 114 Pennsylvania State Law Review 1257 (2010) available at

To learn about pleading and more about civil justice abroad, read my book Failures of American Civil Justice in International Perspective (Cambridge University Press, 2011), available for purchase at

Better yet, write a review of my book—scathing or praising—telling me where I am wrong or where I am right. Leading foreign journals have praised the book; my American colleagues have ignored it. We all, as citizens, should labor for a system of civil justice that works well. Ours does not.

Is anybody listening?

Posted by: James Maxeiner | Apr 10, 2014 11:54:39 AM

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