Latest Pleadings Scholarship

Two more voices have been added to the discussion of pleadings and the significance of the Twombly/Iqbal line of precedent.  They are Robert Bone (Boston U/U Texas) and Ed Hartnett (Seton Hall), two prominent civil procedure scholars that are very much worth reading.

First, Robert Bone has posted a follow up to his pleadings article in "Plausibility Pleading Revisited and Revised" on SSRN.  The piece is forthcoming in Notre Dame Law Review. Here is the abstract:

This Essay critically examines the Supreme Court’s most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), decided in May 2009. The essay supplements and extends the analysis in my recent article, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 874 (2009), which examined the Supreme Court’s seminal Bell Atlantic Corp. v. Twombly decision and evaluated the costs and benefits of screening meritless suits at the pleading stage. In this essay, I argue that Iqbal does much more than clarify and reinforce key points in Twombly; it takes Twombly’s plausibility standard in a new and ultimately ill-advised direction. My criticism has two parts. First, Iqbal adopts a 'two-pronged approach' that filters legal conclusions in the first prong before applying the plausibility standard to factual allegations in the second. I argue that this two-pronged approach is incoherent. There is only one prong: the judge must determine whether the complaint, interpreted as a coherent whole, plausibly supports each element of the legal claim. The second problem with Iqbal runs deeper. Iqbal screens lawsuits more aggressively than Twombly, and does so without adequate consideration of the policy stakes. In particular, Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits. The thick screening model is highly problematic on policy grounds, even in cases like Iqbal that involve qualified immunity. Moreover, the Supreme Court is not institutionally well-equipped to decide whether strict pleading is desirable, especially when it implements a thick screening model. Those decisions should be made through the formal Rules Enabling Act process or by Congress.

Second, Ed Hartnett has posted "Taming Twombly" (nice title!) on SSRN. The piece is forthcoming in Penn Law Review Here is the abstract:

In Bell Atlantic v. Twombly, the Supreme Court held that an antitrust complaint alleging that major telecommunication providers engaged in parallel conduct unfavorable to competition could not survive a 12(b)(6) motion to dismiss, even though the complaint expressly alleged a conspiracy. The Court insisted that a complaint contain 'enough facts to state a claim to relief that is plausible on its face,' and concluded that a conspiracy, while 'conceivable' was not 'plausible.' In addition, the Court retired the famous language from Conley v. Gibson that 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Scholarly reaction to Twombly has been largely critical, complaining that the Court imposed a heightened specificity standard of pleading and that plaintiffs will lack the evidence to plead these specifics prior to discovery. Some suggested that Twombly’s requirement of plausibility should be understood as an aspect of substantive antitrust law, thereby limiting the impact of the decision largely to antitrust cases. Others suggested that Twombly should be limited to large, complex, sprawling cases, given the Court’s evident concern with the cost of discovery in such cases. These hopes of limiting Twombly were dashed by the Supreme Court’s decision in Ashcroft v. Iqbal, which held that the Twombly framework applies to all civil actions. Faced with the failure of the attempt to limit Twombly, some have called for a legislative restoration of Conley v. Gibson. This article takes a different tack. Rather than decrying Twombly as a radical departure and seeking to overturn it, this article instead emphasizes Twombly’s connection to prior law and suggests ways in which it can be tamed. First, the plausibility standard of Twombly can be understood as equivalent to the traditional insistence that a factual inference be reasonable. Second, the Twombly framework can be treated as an invitation to present information and argument designed to dislodge a judge’s baseline assumptions about what is natural. Third, and despite widespread assumption to the contrary, discovery can proceed during the pendency of a Twombly motion. This paper also suggests that the traditional practice of pleading 'on information and belief' be retired, and connects a tamed Twombly to broader trends toward managerial and discretionary judging. 

Hartnett's point that discovery can proceed during the pendency of a 12b6 motion is interesting and very important to practioners if it bears out.  I haven't read the papers yet but both deserve a close look.

ADL