Tuesday, January 11, 2011
Melanie A. Goff ( student, Northern Kentucky University - Salmon P. Chase College of Law) and our own Rick Bales (Northern Kentucky University - Salmon P. Chase College of Law) have posted on SSRN their forthcoming piece in the American Journal of Trial Advocacy: A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses.
Here is the abstract:
The U.S. Supreme Court’s 2007 and 2009 decisions in Twombly and Iqbal radically altered the environment in which federal complaints are filed by creating a “plausibility” requirement where the Federal Rules before required only a “short and plain statement” providing “notice” of a claim. The lower federal courts have just now begun to deal with the Twombly-Iqbal fallout. One of the issues that has arisen – the issue addressed by this article – is whether the new plausibility pleading standard applies only to plaintiffs’ complaints, or whether it applies also to affirmative defenses raised in defendants’ answers. This article argues that, regardless of whether the Twombly-Iqbal departure from notice pleading was wise, the new standard should be applied uniformly to all pleadings, because to do otherwise would even further uniquely and unfairly disadvantage plaintiffs.
As I see it, what's good for the goose, is the good for the gander. From my point of view, and many are of like mind I know, including Rick and his co-author, it would have been better if the case names Twombly and Iqbal just never were.