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 andextends the analysis in my recent article, Twombly, Pleading Rules, andthe Regulation of Court Access, 94 IOWA L. REV. 874 (2009), whichexamined the Supreme Court’s seminal Bell Atlantic Corp. v. Twomblydecision and evaluated the costs and benefits of screening meritlesssuits at the pleading stage. In this essay, I argue that Iqbaldoes much more than clarify and reinforce key points in Twombly; ittakes Twombly’s plausibility standard in a new and ultimatelyill-advised direction. My criticism has two parts. First, Iqbaladopts a ‘two-pronged approach’ that filters legal conclusions in thefirst prong before applying the plausibility standard to factualallegations in the second. I argue that this two-pronged approach isincoherent. There is only one prong: the judge must determine whetherthe complaint, interpreted as a coherent whole, plausibly supports eachelement of the legal claim. The second problem with Iqbal runs deeper. Iqbalscreens lawsuits more aggressively than Twombly, and does so withoutadequate consideration of the policy stakes. In particular, Iqbalapplies a thick screening model that aims to screen weak as well asmeritless suits, whereas Twombly applies a thin screening model thataims to screen only truly meritless suits. The thick screening model ishighly problematic on policy grounds, even in cases like Iqbalthat involve qualified immunity. Moreover, the Supreme Court is notinstitutionally well-equipped to decide whether strict pleading isdesirable, especially when it implements a thick screening model. Thosedecisions should be made through the formal Rules Enabling Act processor 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 majortelecommunication providers engaged in parallel conduct unfavorable tocompetition could not survive a 12(b)(6) motion to dismiss, even thoughthe complaint expressly alleged a conspiracy. The Court insisted that acomplaint contain ‘enough facts to state a claim to relief that isplausible on its face,’ and concluded that a conspiracy, while’conceivable’ was not ‘plausible.’ In addition, the Court retired thefamous language from Conley v. Gibson that ‘a complaint should not bedismissed for failure to state a claim unless it appears beyond doubtthat the plaintiff can prove no set of facts in support of his claimwhich would entitle him to relief.’ Scholarly reaction to Twomblyhas been largely critical, complaining that the Court imposed aheightened specificity standard of pleading and that plaintiffs willlack the evidence to plead these specifics prior to discovery. Somesuggested that Twombly’srequirement of plausibility should be understood as an aspect ofsubstantive antitrust law, thereby limiting the impact of the decisionlargely to antitrust cases. Others suggested that Twomblyshould be limited to large, complex, sprawling cases, given the Court’sevident concern with the cost of discovery in such cases. These hopesof 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 Twomblyframework can be treated as an invitation to present information andargument designed to dislodge a judge’s baseline assumptions about whatis natural. Third, and despite widespread assumption to the contrary,discovery can proceed during the pendency of a Twomblymotion. This paper also suggests that the traditional practice ofpleading ‘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