Comparative convergences in pleading standards

University of Pennsylvania Law Review

Volumn 158, Issue 2, 2010, Pages 441-472

  Dodson, Scott ^a  

^a The College of William and Mary   (United States)

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EID: 77649223726     PISSN: 00419907     EISSN: None     Source Type: Journal    
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References (318)

1. See Scott Dodson, Review Essay, The Challenge of Comparative Civil Procedure, 60 ALA. L. REV. 133, 134 (2008) (reviewing OSCAR G. CHASE ET AL., CIVIL LITIGATION IN COMPARATIVE CONTEXT (Oscar G. Chase & Helen Hershkoff eds., 2007)) (noting that the United States has failed to borrow from and harmonize with procedures from foreign legal systems).
2. For a discussion of the differences between common law and civil law traditions, see generally JOHN HENRY MERRYMAN & ROGELIO PÉREZ-PERDOMO, THE CIVIL LAW TRADITION (3d ed. 2007).
3. See Dodson, supra note 1, at 14M2 (pointing to a reverence for the civil jury trial and the "American Rule" for attorneys' fees as examples);
4. Oscar G. Chase, American "Exceptionalism" and Comparative Procedure, 50 AM. J. COMP. L. 277, 278 (2002) (documenting how "idiosyncrasies of American culture are reflected in the procedural rules that govern civil litigation");
5. Geoffrey C. Hazard, Jr., From Whom No Secrets Are Hid, 76 TEX. L. REV. 1665, 1665 (1998) (explaining that differences in discovery procedures between the United States and foreign jurisdictions present difficulties for harmonizing the law of procedure among jurisdictions);
6. Richard L. Marcus, Putting American Procedural Exceptionalism into a Globalized Context, 53 AM. J. COMP. L. 709, 709 (2005) ("Not only does America conceive itself, often ruefully, as the litigation superpower, but it also has a set of procedural characteristics that seem to set it off from almost all of the rest of the world." (footnote omitted)).
7. See Dodson, supra note 1, at 144-50 (citing liberal pleading rules, verdict constraints, and tile involved role of the judiciary as areas in American law trending towards harmonization).
8. See id. at 143-44 (noting areas in American civil procedure where "[h]armonization and alignment are particularly promising").
9. FED. R. CIV. P. 8(a).
10. See infra Section II. A (discussing the history of the drafting of Rule 8).
11. Pub. L. No. 104-67, 109 Stat. 737 (codified in scattered sections of 15 U. S. C.).
12. -550 U.S. 544 (2007).
13. -129 S. Ct. 1937 (2009).
14. See CHASE ET AL., supra note 1, at 1-2 (describing the importance of a global approach to the study of civil procedure);
15. THOMAS O. MAIN, GLOBAL ISSUES IN CIVIL PROCEDURE 2 (2006) (discussing how a comparative approach to learning procedural rules provides "meaningful context," allowing students to more easily internalize the material);
16. Kevin M. Clermont, Integrating Transnational Perspectives into Civil Procedure: What Not to Teach, 56 J. LEGAL EDUC. 524, 535 (2006) (highlighting how comparative procedural study helps to overcome misconceptions and deepen understanding of one's own legal system);
17. John H. Langbein, The Influence of Comparative Procedure in the United States, 43 AM. J. COMP. L. 545, 545 (1995) ("The purpose of comparative study is to help understand what is distinctive (and problematic) about domestic law.").
18. See CHASE ET AL., supra note 1, at 2 (explaining the pragmatic advantages of comparative legal study, including international legal practice);
19. AIN, supra note 11, at 1 ("In this era of increasing globalization, provincialism can be not only an embarrassment, but a professional liability.");
20. Clermont, supra note 11, at 525 (emphasizing that a familiarity with foreign systems is a necessity in our increasingly global society).
21. See Dodson, supra note 1, at 139 (defining harmonization as "a coming together of various independent legal systems"). There are downsides to harmonization, of course.
22. See, e.g., Jeffrey S. Parker, Comparative Civil Procedure and Transnational "Harmo-nization": A Law-and-Economics Perspective 3-4 (George Mason Univ. Law & Econ. Research Paper Series, Paper No. 09-03, 2008), available at http://ssrn.com/abstract-id=1325013 (arguing that legal diversity among nations, like diversity in product markets, can be welfare enhancing).
23. See MAIN, supra note 11, at 2 (proposing that procedure be studied from international, transnational, and comparative perspectives);
24. Clermont, supra note 11, at 535 (noting a common misconception that the procedure in one's home jurisdiction provides the only set of rules that works).
25. See Dodson, supra note 1, at 139-40 (proposing that "a willingness to appreciate other solutions can represent a step towards better international relations").
26. See id. at 140 (acknowledging that because procedure is tied to the fundamental principles of one's home system, it is resistant to change).
27. See CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS § 68, at 470 (6th ed. 2002) ("The keystone of the system of procedure embodied in the rules is Rule 8 .... The other procedural devices of the rules-broad joinder, discovery, free amendment, and summary judgment-rest on these provisions about pleadings.").
28. See Marcus, supra note 3, at 710 (discussing the interdependence of procedural elements).
29. See Chase, supra note 3, at 278 ("[T]he formal procedures of dispute resolution found in any culture reflect and express its metaphysics and its values ....");
30. see also Kevin M. Clermont, Why Comparative Civil Procedure?, Foreword to KUO-CHANG HUANG, INTRODUCING DISCOVERY INTO CIVIL LAW, at ix, xii (2003) (arguing that procedure is "surprisingly culture-bound");
31. Hein Kötz, Civil Justice Systems in Europe and the United States, 13 DUKE J. COMP. & INT'L L. 61, 71 (2003) (presenting the view that rules are rooted in a "country's peculiar features of history, social structure, and political consensus"). In addition, the values underlying civil procedure choices are more subtle and latent than substantive norms. I am indebted to Kevin Clermont for this point.
32. See Clermont, supra note 19, at ix, xi (noting that comparative scholarship is delicate and that actual transplanting is uncommon);
33. Marcus, supra note 3, at 710 (arguing that the hesitance of American proceduralists to consider comparative insights is a result of the parochial view that comparative insights are "of relatively little utility and perhaps even dangerous");
34. cf. John C. Reitz, Why We Probably Cannot Adopt the German Advantage in Civil Procedure, 75 IOWA L. REV. 987, 988 (1990) (arguing that adopting certain German civil procedure features could not be done "without radically changing other important aspects of our legal culture").
35. See Antonio Gidi, Teaching Comparative Civil Procedure, 56 J. LEGAL EDUC 502, 502 (2006) ("American proceduralists are among the most parochial in the world.").
36. Cf. Paul R. Dubinsky, Is Transnational Litigation a Distinct Field? The Persistence of Exceptionalism in American Procedural Law, 44 STAN. J. INT'L L. 301, 355 (2008) ("[T]he current crop of American scholars in civil procedure and conflict of laws is perhaps as well versed in the comparative and international dimensions of their field as any group of American legal scholars and any generation of American proceduralists.");
37. Parker, supra note 13, at 1-2 ("[R]ecent trends show increasing attention to comparative procedural law, and in particular to civil procedure.").
38. See Gidi, supra note 21, at 502 (stating that comparative civil procedure's "pervasive absence" from American law schools is "well documented");
39. Langbein, supra note 11, at 545 ("The study of comparative procedure in the United States has little following in academia, and virtually no audience in the courts or in legal policy circles.");
40. Marcus, supra note 3, at 740 (lamenting that, in the United States, "comparative procedure is barely on the map"). That is not to say that U.S. civil procedure courses do not have a transnational flair at times.
41. See, e.g., 28 U.S.C § 1332 (2006) (creating alienage jurisdiction); FED. R. CIV. P. 4 (f), 4 (h) (governing international service of process);
42. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987) (discussing personal jurisdiction over a foreign defendant);
43. Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (describing forum non conveniens). But these are simply international flavorings to American procedural law. They are not comparisons of foreign rules and systems.
44. See Dubinsky, supra note 22, at 308 (highlighting a "tendency of the American bench to approach transnational scenarios from the perspective of interstate frameworks, precedents, and policy concerns").
45. See Chase, supra note 3, at 287-301 (examining features of American exceptionalism);
46. Dodson, supra note 1, at 141 (noting that American exceptionalism is "deeply entrenched").
47. I have discussed these exceptionalist features previously in Dodson, supra note 1, at 141-42.
48. See Richard L. Marcus, Modes of Procedural Reform, 31 HASTINGS INT'L & COMP. L. REV. 157, 186-87 (2008) (arguing that major American procedural reform generally happens only in response to a crisis).
49. See CHASE ET AL., supra note 1, at 8 (comparing the American system of notice pleading to the heightened requirements of fact pleading used in most civil law countries).
50. See Stephen N. Subrin, How Equity Conquered Common LAW, 135 U. PA. L. REV. 909, 933-74 (1987) (documenting the history and motivation of the adoption of the Federal Rules).
51. Act of Apr. 12, 1848, ch. 379, §120 (2), 1848 N. Y. Laws 521;
52. see also 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1216 (3d ed. 2004) (comparing Rule 8 with the fact pleading required by the old code precedents).
53. The Codes disallowed interrogatories and strictly limited document requests and oral depositions. See Subrin, supra note 29, at 936-37 (listing additional limitations of discovery in code pleading).
54. See Charles E. Clark, History, Systems and Functions of Pleading, 11 VA. L. REV. 517, 533 (1925) (calling the system of pleading facts one of the "most important" characteristics of the Codes).
55. See Fred Rodell, For Charles E. Clark: A Brief and Belated but Fond Farewell, 65 COLUM. L. REV. 1323, 1323 (1965) (calling Clark the "prime instigator and architect of the rules of federal civil procedure").
56. Clark initially favored abolishing pleading motions altogether so that all merits dispositions would occur via trial or summary judgment. See Michael E. Smith, Judge Charles E. Clark and the Federal Rules ofCivil Procedure, 85 YALE L. J. 914, 927-28 (1976) (describing Clark's preference for Rule 56 summary judgment over the devices of Rule 12).
57. See Richard L. Marcus, The Puzzling Persistence of Pleading Practice, 76 TEX. L. REV. 1749, 1749 (1998)
58. [hereinafter Marcus, Puzzling] (asserting that tile drafters of Rule 8 wished to "curtail reliance on the pleadings"); Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433, 433 (1986) [hereinafter Marcus, Revival] (stating that Rule 8 "was designed to escape the complexities of fact pleading").
59. Christopher M. Fairman, Heightened Pleading, 81 TEX. L. REV. 551, 556 (2002).
60. Marcus, Revival, supra note 35, at 439;
61. see also Charles E. Clark, The Handmaid of Justice, 23 WASH. U. L. Q. 297, 318-19 (1938) (denouncing dismissals based on the pleadings).
62. See WRIGHT & KANE, supra note 17, at 458 ("The draftsmen of the Civil Rules proceeded on the conviction, based on experience at common law and under the codes, that pleadings are not of great importance in a lawsuit").
63. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993) ("[F]ederal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims ....");
64. Charles E. Clark, The New Federal Rules of Civil Procedure: The Last Phase-Underlying Philosophy Embodied in Some of the Basic Provisions of the New Procedure, 23 A. B. A. J. 976, 977 (1937) ("[T]hrough the weapons of discovery and summary judgment we have developed new devices, with more appropriate penalties to aid in matters of proof, and do not need to force the pleadings to their less appropriate function.");
65. Marcus, Revival, supra note 35, at 440 (describing features of the Federal Rules, such as expanded discovery, which provided courts a heightened ability to decide the merits of a case on summary judgment).
66. See Fairman, supra note 36, at 556 ("Instead of requiring pleadings to serve the multiple functions of notice, fact development, winnowing, and early disposition, un-der the Federal Rules pleadings serve but a single function: providing notice.").
67. FED. R. CIV. P. 8 (a) (2).
68. See Edward D. Cavanagh, Twombly, the Federal Rules of Civil Procedure and the Courts, 82 ST. JOHN'S L. REV. 877, 877 (2008) (explaining how the drafters declined to require a plaintiff to allege facts sufficient to establish a cause of action);
69. Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 1007 (2003) (stating that Rule 8 was specifically designed to inter the old code pleading requirement of pleading facts constituting a cause of action).
70. See Charles E. Clark, Simplified Pleading, 2 F. R. D. 456, 460-61 (1943) (remarking that notice was the principal goal of pleading when the rules were developed);
71. Fairman, supra note 42, at 990 ("A procedural system with notice pleading at its core is no accident").
72. But see Marcus, Puzzling supra note 35, at 1749-51 (arguing that pleadings should be dismissed only when the allegations themselves demonstrate a bar to relief).
73. Thomson v. Washington, 362 F.3d 969, 970 (7th Cir. 2004);
74. see also Fairman, supra note 42, at 988 ("If any rule in federal civil procedure deserves the label 'blackletter,' it is notice pleading.").
75. See WRIGHT & MILLER, supra note 30, § 1216 ("Conspicuously absent from Federal Rule 8 (a) (2) is the requirement found in the codes that the pleader set forth the 'facts' constituting a 'cause of action.'").
76. See ADVISORY COMM. ON RULES FOR CIVIL PROCEDURE, 1955 REPORT OF THE ADVISORY COMMITTEE PROPOSED AMENDMENTS TO THE RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS (stating that Rule 8's contemplation of facts is only to distinguish the claim from a bare averment that the plaintiff wants and is entided to relief), reprinted in WRIGHT & MILLER, supra note 30, app. F, at 644-45.
77. Clark, supra note 43, at 460-61.
78. See Fairman, supra note 42, at 1001 ("To provide notice, some complaints certainly go beyond . . . skeletal illustrations .... What simplified notice pleading calls for is a general description of the case. To do so, more or less description may be inherent" (footnote omitted)).
79. But see Allan Ides, Bell Atlantic and the Principle of Substantive Sufficiency Under Federal Rule, of Civil Procedure 8 (a) (2): Toward a Structured Approach to Federal Pleading Practice, 243 F. R. D. 604, 605 (2007) ("Assertions that the rule does not require the pleading of facts ... are both oft stated and ... demonstrably false.").
80. See Subrin, supra note 29, at 910 ("Approximately half of the states adopted almost identical rules [to the Federal Rules], and procedural rules in the remainder of the states bear their influence.").
81. See Marcus, Revival, supra note 35, at 433 ("There were pockets of resistance against the new pleading rules in the years after 1938 ....");
82. Subrin, supra note 29, at 983 ("Soon after the Federal Rules went into effect there were signs that both lawyers and judges felt a need to limit the system that the drafters had created.").
83. Hazard, supra note 3, at 1685;
84. see also Marcus, Puzzling supra note 35, at 1750 (noting the resistance to Rule 8's liberal pleading standard).
85. See Marcus, Revival, supra note 35, at 445 ("Conley v. Gibson seemed to scotch the effort to revert to code practice.").
86. Conley v. Gibson, 355 U.S. 41, 47 (1957).
87. Id.
88. Id.
89. See Marcus, Revival, supra note 35, at 434 (opining that the thrust of Conley seems to be that pleadings need only give general notice but nothing more); A. Benjamin Spencer, Understanding Pleading Doctrine, 108 MICH. L. REV. 1, 20 (2009) ("Conley v. Gibson sealed the deal [on the issue of notice pleading].").
90. Conley, 355 U.S. at 45-46.
91. See Marcus, Revival, supra note 35, at 434 ("Taken literally, [Conley] might have
92. Precluded dismissal in any case where the plaintiff invoked a valid legal theory."). Professor Hazard has argued that Conley's interpretation is contrary to Rule 8.
93. See Hazard, supra note 3, at 1685 (arguing that Conley "turned Rule 8 on its head by holding that a claim is insufficient only if the insufficiency appears from the pleading itself."). Others disagree.
94. See, e.g., Emily Sherwin, The Story of Conley: Precedent by Accident, in CIVIL PROCEDURE STORIES 295, 315-16 (Kevin M. Clermont ed., 2d ed. 2008) (arguing that the "no set of facts" language in Conley should be interpreted literally).
95. See Edward Brunet & David J. Sweeney, Integrating Antitrust Procedure and Substance After Northwest Wholesale Stationers: Evolving Antitrust Approaches to Pleadings, Burden of Proof, and Boycotts, 72 VA. L. REV. 1015, 1071 (1986) ("Nonetheless, a close look at Burger Court antitrust decisions reveals thinking at odds withthenotice pleading tradition."); Marcus, Puzzling, supra note 35, at 1750 (documenting that, after Conley, "pleading practice persisted. In some areas ... the courts appeared to disinter fact pleading.");
96. Marcus, Revival, supra note 35, at 434 (remarking that applying Conley in subsequent cases was "problematic");
97. Ettie Ward, The After-Shocks of Twombly: Will We "Notice" Pleading Changes?, 82 ST. JOHN'S L. REV. 893, 899 (2008) ("District courts routinely grant motions to dismiss for failure to state a claim ....").
98. See Fairman, supra note 36, at 551 ("Despite [die] clarity [of Rule 8] and the Supreme Court's endorsement of notice pleading in Conley v. Gibson, federal courts have embraced heightened pleading burdens in a variety of situations." (footnote omitted));
99. Fairman, supra note 42, at 1011-59 (discussing judicially imposed heightened pleading in antitrust, civil rights, RICO, conspiracy, and defamation claims).
100. Marcus, Revival, supra note 35, at 435-36 (recounting the revival of fact pleading).
101. Marcus, Puzzling, supra note 35, at 1776;
102. see also Fairman, supra note 36, at 567 (arguing that, despite Rule 8 and Conley, lower federal courts imposed heightened pleading in civil rights cases out of concern for increasing caseloads and a perception of rampant frivolousness).
103. See Harvey Kurzweil et al., Twombly: Another Swing of the Pleading Pendulum, 9 SEDONA CONF. J. 115, 118-19 (2008) (recounting the shift in circuit courts away from bare-bones notice pleading in antitrust cases).
104. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746 (1976) ("[Dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.");
105. Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962) ("[S]ummary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot").
106. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 509-10 (2002) (rejectingthe Second Circuit's heightened pleading standard); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (rejecting the Fifth Circuit's heightened pleading standard);
107. see also Fairman, supra note 42, at 997 ("[W]hen called upon to address pleading issues square on, the Court continually-and unanimously-embraces simplified notice pleading.").
108. See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811 (1993) (affirming the denial of a motion to dismiss).
109. See Paul V. Niemeyer, Here We Go Again: Are the Federal Discovery Rules Really in Need of Amendment?, 39 B.C. L. REV. 517, 520 (1998) (describing notice pleading coupled widi broad discovery and broad discretion as "embedded in the infrastructure of American civil procedure");
110. A. Benjamin Spencer, Plausibility Pleading 49 B.C. L. REV. 431, 434 (2008) ("Since ... 1938, notice pleading has beenthewatchword fort the system of pleading in federal civil courts.").
111. Germany and France are particularly appropriate for comparison because "[e]ach . . . has made a major contribution tothecivil law tradition, and each still occupies a position of intellectual leadership in the civil law world." MERRYMAN & PÉREZPERDOMO, supra note 2, at ix;
112. see also Marcus, supra note 3, at 717-18 (notingthehistorical prevalence of the German civil procedure system as a model for comparisons with die American system);
113. Stephen N. Subrin, Discovery in Global Perspective: Are We Nuts?, 52 DEPAUL L. REV. 299, 301 (2002) (noting that, in comparing American civil procedure to other countries, it is typical to look at England, France, Germany, Italy, and Japan). Of course, civil law systems are dynamic and differ widely.
114. See MERRYMAN & PÉREZ- PERDOMO, supra note 2, at 143-47 (describing the diversity of legal systems of different countries, and attributing it in part to cultural and historical circumstances). Thus, I must rely on some generalities and extrapolations in this Section.
115. ANDREW J. MCCLURG ET AL., PRACTICAL GLOBAL TORT LITIGATION: UNITED STATES, GERMANY AND ARGENTINA 65 (2007) (calling the initial complaint "die crucial blueprint on which the entire lawsuit will depend").
116. PETER L. MURRAY & ROLF STŪRNER, GERMAN CTVIL JUSTICE 198 (2004); see also CHASE ET AL., supra note 1, at 171 (noting that the statement of a claim should also "provide details of factual circumstances supporting the petition as well as the designation of the evidence by which the party will prove its factual allegations." (citation omitted));
117. John H. Langbein, The German Advantage in Civil Procedure, 52 U. CHI. L. REV. 823, 827 (1985) (stating that the complaint should contain the "key facts" and "propose[] means of proof for its main factual contentions"). German law professor Peter Schlosser has described the factual requirements of the complaint In Germany, litigation starts with the submission of a written statement to the court... [that] is a very extensive, detailed and, if it comes from a qualified attorney, very carefully drafted paper.... If documentary evidence is available, it will usually be enclosed. Should circumstantial evidence exist, it is also explained to the judge in the statement of claim and may be emphasized by copies of relevant documents and other materials.
118. Peter F. Schlosser, Lectures on Civil-Law Litigation Systems and American Cooperation with Those Systems, 45 U. KAN. L. REV. 9, 12 (1996) (footnote omitted).
119. MURRAY & STŪRNER, supra note 71, at 197-98;
120. see also Langbein, supra note 71, at 827 (stating that the complaint should contain a proposed means of proof for the key facts as well as a list of botii the supporting documents in the plaintiffs possession and die other documents and witnesses that will support his position);
121. James R. Maxeiner, Legal Certainty: A European Alternative to American Ilegal Indeterminacy?, 15 TUL. J. INT'L & COMP. L. 541, 575 (2007) (asserting that the plaintiff must include all facts upon which die claim is based, as well as proof for the stated facts).
122. See MAIN, supra note 11, at 28-29 (stating that a complaint in Spain must provide a complete narrative of the factual background and reference all documents that are to be attached to the complaint); id. at 29 (stating that, in Austria, the plaintiff must include a statement of tile facts upon which the claim is based in the complaint);
123. Schlosser, supra note 71, at 13 (stating that while French pleading is more notice based than German pleading, the plaintiff must still provide a statement of the facts to justify the claim);
124. Michele Taruffo, Civil Procedure and the Path of a Civil Case (reporting similar standards in Italy), in INTRODUCTION TO ITALIAN LAW 159, 166 (Jeffrey S. Lena & Ugo Matteieds., 2002).
125. Japan is a common comparison country because it adopted the Germanic civil law system virtually verbatim but has been heavily influenced by U.S. procedure and public law in ways that make it a relatively unique hybrid system. See CHASE ET AL., supra note 1, at 4 (noting that Japan's system combines elements of civil law and common law procedure);
126. MERRYMAN & PÉREZ-PERDOMO, supra note 2, at 4 (discussing the influence of both civil and common law notions on the development of Japanese legal traditions).
127. Japanese law requires that "die operative fact-basis of the claim" be specified as well as relevant important indirect facts that relate to the cause of action [in the complaint]. Evidence should be itemized and written out according to each point to be proved.... The role of the complaint is to disclose all of the important facts and evidence at an early stage as well as to identify the nature of the claim.
128. Takeshi Kojima, Japanese Civil Procedure in Comparative Law Perspective, 46 U. KAN. L. REV. 687, 697 (1998) (footnote omitted) (quoting MINSOHO KISOKU [Rules of Civil Procedure], Sup. Ct. Rule No. 5 of 1996).
129. Id.;
130. see also CARL F. GOODMAN, JUSTICE AND CIVIL PROCEDURE IN JAPAN 257 (2004) ("It is not sufficient to allege ultimate facts but also underlying facts that need to be established to support the claim must be asserted.").
131. Id.
132. In China, the bill of complaint must set forth the facts and reasons on which the request is based, as well as evidence and the source of the evidence. See Lindsey Kiang, Intellectual Property Litigation in the People's Republic of China, in CTVIL PROCEDURE LAW OF THE PEOPLE'S REPUBLIC OF CHINA 113 (1993), WL 369 PLI/Pat 113. In India, pleadings must state the material facts, defined as "[a]ll the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence."
133. See CK. TAKWANI, CIVIL PROCEDURE 109 (3d ed. 1994) (quoting Udhav Singh v. Madhav Rao Scindia (1976) 2 S.CR. 246, 257 (India)).
134. England is a common comparison country because it is the parent to the U.S. legal system. See Subrin, supra note 29, at 914-18 (noting the influence of England's common law system on the development of U.S. procedure). Common law systems include the United States, Canada, Australia, New Zealand, South Africa, India, Israel, Singapore, and Bermuda.
135. See Hazard, supra note 3, at 1672 (noting that all of these systems derive from the English system).
136. RSC O. 18r. 7(1) (U.K.).
137. Id. O.18 r. 12(1) (U.K.).
138. See NEIL ANDREWS, ENGLISH CIVIL PROCEDURE 254 (2003) (specifying that "[t]he claimant is not required to adduce at this early stage details of the evidence by which he intends to establish his claim" but must describe the facts and details relating to his allegations).
139. See id at 251-56 (recognizing that, while the rules permit the inclusion of any document necessary to support the claim, courts urge the filing of excerpts due to limited filing space);
140. CHASE ET AL., supra note 1, at 166 (describing the other required elements of a claim form, most notably the duty to disclose funding arrangements such as the existence of a conditional fee agreement).
141. ANDREWS, supra note 82, at 253.
142. See MAIN, supra note 11, at 28-32 (noting that other countries similarly require factual specificity, pleading evidence, and legal precision).
143. ALI/UNIDROIT PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE princ. 12.3 (2006).
144. Hazard, supra note 3, at 1671.
145. Pub. L. No. 104-67, 109 Stat. 737 (codified in scattered sections of 15 U.S.C.).
146. -15 U.S.C § 78u-4(b)(l) (2006) ("[T]he complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.").
147. Id. § 78u-4(b)(2) ("[T]he complaint shall... state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.").
148. Marcus, supra note 27, at 178.
149. Pub. L. No. 106-37,113 Stat. 185 (1999) (codified at 15 U.S.C. §§ 6601-6617).
150. -15 U.S.C. § 6607(d).
151. Id. § 6607(b).
152. Id. §6607(c).
153. Both the PSLRA and the Y2K Act were designed to curb frivolous claims. See S. REP. NO. 104-98, at 4 (1995) (describing the PSLRA's goal of deterring frivolous strike suits), as reprinted in 1995 U.S.C.C.A.N. 679, 683;
154. Fairman, supra note 36, at 613-15 (noting that President Clinton's Y2K signing statement reiterated legislative concerns for deterring frivolous claims);
155. Hillary A. Sale, Heightened Pleading and Discovery Stays: An Analysis of the Effect of the PSLRA's Internal-Information Standard on '33 and '34 Act Claims, 76 WASH. U. L.Q.- 537, 552-57 (1998) (describing Congress's motivation for reform as stemming from concern about the negative impact frivolous suits were having on market credibility and regulation). This justification has wide appeal.
156. See, e.g., Fairman, supra note 36, at 567 (noting that lower federal courts have imposed heightened pleading in civil rights cases based upon a perception of rampant frivolousness).
157. For example, Congress considered heightened pleading for nationwide class actions in early versions of the Class Action Fairness Act. See Class Action Fairness Act of 2001, H.R. 2341, 107th Cong. §1716(a)-(b) (2001) (requiring plaintiffs to specify relief, scienter, and alleged injury with "particularity" in their pleadings).
158. -550 U.S. 544 (2007).
159. See Scott Dodson, Pleading Standards After Bell Adantic Corp. v. Twombly, 93 VA. L. REV. IN BRIEF 135, 138 (2007), http://www.virginialawreview.org/inbrief.phpPs=inbrief&p= 2007/07/09/dodson ("[A] t least for the kinds of costly class action antitrust cases like the one initiated by Twombly, Bell Atlantic erects an additional 'plausibility' requirement of fact pleading in its place, what I have called 'notice-plus.'").
160. See Id. at 135 (arguing that the Court "gutted the venerable language from Conley v. Gibson that every civil procedure professor and student can recite almost by heart 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" (quoting 355 U.S. 41,45-16 (1957))).
161. See Dodson, supra note 1, at 145 (arguing that "discrete changes" in pleading, such as Twombly, may represent an emerging trend toward transnational harmonization in pleading standards).
162. Twombly, 550 U.S. at 548-50.
163. Id. at 550-52.
164. See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 (1993) ("Tacit collusion . . . describes the process, not in itself unlawful, by which firms in a concentrated market might in effect share monopoly power, setting their prices at a profit-maximizing supracompetitive level by recognizing their shared economic interests and their interdependence with respect to price and output decisions.").
165. Twombly, 550 U.S. at 553-54. One commentator has argued that, in fact, the antitrust case law previously allowed conscious parallel conduct to permit an inference of conspiracy and that the shift in Twombly created a substantive change in antitrust law. See Keith Bradley, Pleading Standards Should Not Change After Bell Adantic v. Twombly, 102 NW. U. L. REV. COLLOQUY 117, 117 (2007) (commenting that those who believe that Twombly changed pleading standards but not substantive antitrust law "ha[ve] it backwards").
166. Twombly, 550 U.S. at 557 & n.5.
167. Id. at 556-57. The Court acknowledged Judge Charles E. Clark's opinion in Nagler v. Admiral Corp., 248 F.2d 319 (2d Cir. 1957), which held that conscious parallelism is sufficient to state a claim under section 1, but concluded that intervening Supreme Court cases questioning that inference in other phases of litigation suggest that "it is time for a fresh look at adequacy of pleading when a claim rests on parallel action." Twombly, 550 U.S. at 561 n.7.
168. See Dodson, supra note 99, at 137-39 (discussing various interpretations of the breadth of Twombly);
169. Posting of Scott Dodson to PrawfsBlawg, The Mystery of Twombly Continues, http://prawfsblawg.blogs.com/prawfsblawg/2008/02/dle-mystery-of. html(Feb. 5, 2008) [hereinafter Dodson, Prawfsblawg] (describing the confusion among the circuit courts). As one judge put it, "We district court judges suddenly and unexpectedly find ourselves puzzled over something we thought we knew how to do with our eyes closed: dispose of a motion to dismiss a case for
170. Colleen McMahon, The Law of Unintended Consequences: Shockwaves in the Lower Courts After Bell Atlantic Corp. v. Twombly, 41 SUFFOLK U. L. REV. 851, 853 (2008). For a bibliography of commentary in the immethate Twombly aftermath, see Dodson, Prawfsblawg, supra.
171. See, e.g., Spencer, supra note 68, at 475 (arguing that Twombly imposes "a pleading obligation that approaches the particularity requirement of Rule 9(b)");
172. Posting of Michael Dorf to Dorf on Law, The End of Notice Pleading?, http://www.dorfonlaw.org/2007/05/end-of-notice-pleading.html (May 24, 2007) (asserting that Twombly imposes a heightened pleading standard).
173. But see Dodson, supra note 99, at 140 ("What Rule 8 requires after both Erickson and Bell Atlantic are not specific facts, but sufficient facts such that the complaint as a whole makes a 'showing' of entitlement to relief.").
174. See Twombly, 550 U.S. at 569 n.14 ("[W]e do not apply any 'heightened' pleading standard, nor do we seek to broaden the scope of Federal Rule of Civil Procedure 9...");
175. id. at 570 ("Here,... we do not require heightened fact pleading of specifics....").
176. Compare id. at 556 (reciting "general standards" of pleading), and Dodson, supra note 99, at 140 ( "[T] he best reading of Bell Atlantic is that Rule 8 now requires notice-plus pleading for all cases . .. ."), and
177. Spencer, supra note 68, at 458-59 nn.150-52 (citing courts applying Twombly beyond the antitrust context), and
178. Kendall W. Hannon, Note, Much Ado About Twombly ? A Study on the Impact of Bell Adantic Corp. v. Twombly on 12(b)(6) Motions, 83 NOTRE DAME L. REV. 1811, 1814-15 (2008) (reporting that courts "have applied the decision in every substantive area of law governed by Rule 8"), with Twombly, 550 U.S. at 559 ("It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through 'careful case management,' given ... that the success of judicial supervision in checking discovery abuse has been on the modest side." (citation omitted)),
179. and id. ("[T]he threat of discovery expense will push cost-conscious defendants to settle even anemic cases . ..."), and
180. Ides, supra note 49, at 635-36 ("[T]he 'better' reading of Bell Atlantic is that it did not change the law of pleading, but that it simply applied longaccepted pleading standards to a unique body of law under which the plaintiffs' complaint failed to include any facts or plausible inferences supportive of a material element of the claim specifically asserted by the plaintiffs.").
181. See Dodson, supra note 99, at 142 (predicting that motions to dismiss will "change from challenges to the legal sufficiency of a complaint to those challenging die factual sufficiency");
182. Suja A. Thomas, Why the Motion to Dismiss Is Now Unconstitutional, 92 MINN. L. REV. 1851, 1882 (2008) (arguing that the "plausibility" requirement imposes an evidentiary standard incompatible with the Seventh Amendment). For more on the doctrinal and normative implications of incorporating merits determinations at the pleading stage,
183. see Lonny S. Hoffman, Burn Up the Chaff with Unquenchable Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power over Pleadings, 88 B.U. L. REV. 1217, 1221-22 (2008).
184. See Twombly, 550 U.S. at 556 ("Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement").
185. Compare Bradley, supra note 105, at 122 (arguing that Twombly does not change pleading standards), and
186. Ides, supra note 49, at 634-36 (same),
187. and J. Douglas Richards, Three Limitations of Twombly: Antitrust Conspiracy Inferences in a Context of Historical Monopoly, 82 ST. JOHN'S L. REV. 849, 851 (2008) (same), and
188. Posting of Einer Elhauge to The Volokh Conspiracy, Twombly-The New Supreme Court Antitrust Conspiracy Case, http://www.volokh.com/posts/ 1179785703.shtml (May 21, 2007) (calling the decision "quite insignificant"),
189. with Spencer, supra note 68, at 431 ("Notice pleading is dead."),
190. and Posting of Scott Dodson to Civil Procedure Prof Blog, Dodson on Erickson, http://lawprofessors.typepad.com/civpro/2007/06/dodson-on- erick.html(June 12, 2007) ("Bell Atlantic sets a 'notice-plus' pleading standard. Mere notice is no longer sufficient." (italics added)), and
191. Dorf, supra note 109 (asserting that Twombly imposes a heightened pleading standard). The lower courts clearly thought Twombly was significant.
192. See Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. ILL. L. REV. 1011, 1021-22 (reporting that Twombly was cited over 13,000 times in U.S. courts in the twelve mondis after it was decided);
193. Hannon, supra note 111, at 1814-15 (reporting that courts "have applied die decision in every substantive area of law governed by Rule 8").
194. See 551 U.S. 89, 93 (2007) (per curiam) (citing Twombly while simultaneously stating that "[s]pecific facts are not necessary"). Compare Posting of Amy Howe to SCOTUSblog, More on Yesterday's Decision in No. 06-7317, Erickson v. Pardus, http:// www.scotusblog.com/wp/more-on-yesterdays-decision-in-no-06-7317-erickson-v- pardus (June 5, 2007) ("It seems likely that the Court . . . decided to summarily reverse in Erickson, likely in order to counteract any impression that could arise that Twombly was intended to set a particularly high pleading standard."), with
195. Dodson, supra note 99, at 139-40 (arguing that Erickson does not mitigate the import of Twombly), and
196. Dodson, supra note 114 (same), and
197. Posting of Michael O'Shea to Concurring Opinions, How Cautionary is Erickson v. Pardus? (With an Excursus on Commerce Clause Disillusionment), http://www.concurringopinions.com/archives/2007/06/how- cautionary-l.html (June 6, 2007) (detailing arguments on both sides of this debate).
198. Studies seem to show that Twombly had a disproportionate impact on discrimination and civil rights claims. See Seiner, supra note 114, at 1014 ("[T]he lower courts are unquestionably using the new plausibility standard to dismiss Title VII claims.");
199. Hannon, supra note 111, at 1815 (concluding that dismissal rates rose in civil rights cases after Twombly). For more on the implications of such disparate impact,
200. see Elizabedi M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. PA. L. REV. 517.
201. See Dodson, supra note 99, at 140 (arguing that Twombly may have signaled a shift from notice to fact pleading);
202. Spencer, supra note 57, at 19 ("[T]he value of notice is largely irrelevant to understanding contemporary standards of substantive sufficiency in pleading.");
203. Ward, supra note 60, at 896 (calling notice the "old narrative"). The Court implied as much numerous times in its opinion. Twombly, 550 U.S. at 556 ("Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement." (emphasis added));
204. id. (identifying "facts that are suggestive enough to render a §1 conspiracy plausible" (emphasis added));
205. id. at 569 n.14 ("Here, our concern is not that the allegations in the complaint were insufficiendy 'particularfized],' rather, the complaint warranted dismissal because it failed in toto to render plaintiffs' entitlement to relief plausible." (citation omitted) (quoting FED. R. CIV. P. 9(b)-(c)));
206. id. at 570 ("Here, ... we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." (emphasis added)).
207. -129 S. Ct 1937(2009).
208. Id. at 1942.
209. Id.
210. Id. at 1949 (citing Twombly, 550 U.S. at 555).
211. Id. (quoting Twombly, 550 U.S. at 570).
212. See id. at 1949-50 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").
213. Id. at 1940-41.
214. Id.
215. See id. at 1948-49 ("[Respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue ....");
216. id. at 1949 ("Nor does a complaint suffice if it tenders 'naked assertion[s] devoid of further factual enhancement'" (alteration in original) (quoting Twombly, 550 U.S. at 557));
217. id. ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" (quoting Twombly, 550 U.S. at 557));
218. id. at 1950 ("Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.");
219. id. ("[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entided to relief.'" (second alteration in original) (quoting FED. R. CIV. P. 8(a)(2)));
220. id. ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.");
221. id. at 1951 ("[T]he complaint must contain facts plausibly showing that petitioners purposefully adopted a policy of classifying post- September-11 detainees as 'of high interest' because of their race, religion, or national origin.");
222. id. (asserting that Iqbal "would need to allege more by way of factual content"); id. ("Yet respondent's complaint does not contain any factual allegation sufficient to plausibly suggest petitioners' discriminatory state of mind.");
223. id. at 1952 ("We next consider the factual allegations in respondent's complaint to determine if they plausibly suggest an entitlement to relief.");
224. id. at 1954 ("But the Federal Rules do not require courts to credit a complaint's conclusory statements without reference to its factual context");
225. id. ("[Respondent's complaint fails to plead sufficient facts to state a claim ...."). The Court did not even mention a notice requirement.
226. Compare id. at 1949 ("Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" (quoting Twombly, 550 U.S. at 557))
227. Christopher v. Harbury, 536 U.S. 403, 406 (2002) ("Since we are reviewing a ruling on motion to dismiss, we accept [die plaintiff's] factual allegations and take them in the light most favorable to her.")
228. and Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("[I]t is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader."),
229. and WRIGHT & MILLER, supra note 30, § 1357 ("For purposes of the motion to dismiss, the complaint is construed in the light most favorable to plaintiff and its allegations are taken as true.... Basically, the court will accept the pleader's description of what happened to him along with any conclusions that can reasonably be drawn therefrom."). Compare Iqbal, 129 S. Ct at 1954 ("Rule 8 does not empower respondent to plead the bare elements of his cause of action, affix the label 'general allegation,' and expect his complaint to survive a motion to dismiss."), with
230. Conley v. Gibson, 355 U.S. 41, 47-48 (1957) ("The respondents also argue that the complaint failed to set forth specific facts to support its general allegations of discrimination and that its dismissal is therefore proper. The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim."). Conspicuously, the Iqbal Court made no mention of Erickson.
231. See Iqbal, 129 S. Ct. at 1953 ("Our decision in Twombly expounded the pleading standard for all civil actions, and it applies to antitrust and discrimination suits alike." (citation omitted) (internal quotation marks omitted));
232. id. at 1953-54 ("We decline respondent's invitation to relax the pleading requirements on the ground that the Court of Appeals promises petitioners minimally intrusive discovery.").
233. See Brief for the Petitioners at 51-52, Iqbal, 129 S. Ct 1937 (No. 07-1015) (arguing that respondent failed to make factual allegations and asking for dismissal of the complaint).
234. That is not to say that support is uniform. Senator Arlen Specter recendy introduced a bill in the Senate to restore the notice pleading standard of Conley v. Gibson. See Notice Pleading Restoration Act of 2009, S. 1504, 111th Cong. § 2.
235. Compare, e.g., Sale, supra note 96, at 562-65, 578-79 (criticizing the PSLRA's heightened pleading requirement for making it more difficult to bring difficult-toprove but potentially meritorious claims), and
236. Spencer, supra note 68, at 433 (arguing that Twombly is an unwarranted and ill-advised departure from notice pleading), with
237. Richard A. Epstein, Bell Adantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments, 25 WASH. U.J.L. & POL'Y 61, 68-72 (2007) (noting that the prevention of discovery abuse is another rationale for plausibility pleading), and
238. Keith N. Hylton, When Should a Case Be Dismissed? The Economics of Pleading and Summary Judgment Standards, 16 SUP. CT. ECON. REV. 39, 41-42 (2008) (providing an economic justification for supporting plausibility pleading in certain cases).
239. See Linda S. Mullenix, lessons from Abroad: Complexity and Convergence, 46 VILL. L. REV. 1, 6 (2001) ("[N]o other country in the world has any system of discovery approaching that provided for in the Federal Rules of Civil Procedure.").
240. See, e.g., Hazard, supra note 3, at 1671-72 (comparing the American notice pleading to other common law systems and highlighting the advantages of fact pleading);
241. Maxeiner, supra note 72, at 601 (criticizing American legal indeterminacy and favoring the certainty offered by a fact-based European system of law).
242. Compare Epstein, supra note 131, at 69-71 (noting substantial discovery burdens in certain commercial litigation cases), with
243. James S. Kakalik et al., Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data, 39 B.C. L. REV. 613, 621 (1998) (reporting minimal or no discovery in a significant portion (about fifty percent in 1975) of civil cases in six federal district courts).
244. See Rex R. Perschbacher & Debra Lyn Bassett, The Revolution of 1938 and Its Discontents, 61 OKLA. L. REV. 275, 279 (2008) (reporting that only 1.3% of federal civil cases reached trial in 2006). Other studies have similarly shown that trial dispositions make up less than 2% of all federal adjudications.
245. See Marc Galanter, A World Without Trials?, 2006 J. DISP. RESOL. 7, 7-8 (finding that trials comprised 1.7% of federal cases in 2004);
246. see also Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004) (documenting the rapid disappearance of the trial in American civil cases).
247. See, e.g., Hylton, supra note 131, at 41 ("[E]arly dismissals, by eliminating lowmerit claims before they become costly, offer benefits to society in comparison to late dismissals.");
248. Perschbacher & Bassett, supra note 135, at 286-87 (observing a shifting emphasis toward efficiency in litigation and away from full and fair adjudication on the merits);
249. Spencer, supra note 68, at 433 (observing a transition from a liberal and openaccess ethos to a "restrictive" and "efficiency-oriented" ethos);
250. The Supreme Court, 2006 Term-Leading Cases, 121 HARV. L. REV. 185, 312 (2007) ("[T]he Court seemed motivated by a desire to increase efficiency by allowing judges to dismiss the cases in which discovery seems least likely to be fruitful.").
251. See Epstein, supra note 131, at 67-69 (arguing that Rule 8 provides too lax a pleading standard for antitrust litigation);
252. Sale, supra note 96, at 552-57 (reporting that die PSLRA's heightened pleading requirement was designed to curb frivolous securities claims);
253. see also Associated Gen. Contractors, Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 528 n.17 (1983) ("[I]n a case of this magnitude, a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.").
254. See, e.g., Epstein, supra note 131, at 68-69 (arguing that fact pleading is more appropriate for modern, complex litigation);
255. Hylton, supra note 131, at 41 ("In general, pleading standards should vary with the ... social costs of litigation.").
256. See, e.g., Marcus, Revival, supra note 35, at 493-94 (arguing that judicial case management offers better tools for weeding out frivolous claims than heightened pleading standards);
257. Randal C. Picker, Twombly, Leegin, and the Reshaping of Antitrust, 2007 SUP. CT. REV. 161, 177 (preferring discovery reform to pleading reform);
258. Sale, supra note 96, at 579-83 (arguing that limiting discovery would have been more effective than the PSLRA's heightened pleading standard at curbing frivolous claims);
259. Spencer, supra note 57, at 30-31 (suggesting that changes to the American Rule, such as ordering each side to bear her own attorney's fees regardless of outcome, might better curb frivolous claims).
260. See Langbein, supra note 71, at 825 (praising the German system of active judicial case management);
261. Mullenix, supra note 132, at 4-12 (listing the differences between the American procedural system and other civil law systems);
262. id. at 12-31 (noting the ways in which American and foreign systems have begun to converge in complex civil litigation).
263. Compare, e.g., Stephen B. Burbank, Of Rules and Discretion: The Supreme Court, Federal Rules and Common Law, 63 NOTRE DAME L. REV. 693, 713-14 (1988) (criticizing transsubstantivity), and
264. Subrin, supra note 29, at 985 (same),
265. with EDWARD BRUNET & MARTIN H. REDISH, SUMMARY JUDGMENT: FEDERAL LAWAND PRACTICE § 9:1 (3d ed. 2006) (presenting arguments for and the historical background of the transsubstantive nature of the Federal Rules),
266. and Paul D. Carrington, Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Substantive Rules of Civil Procedure, 137 U. PA. L. REV. 2067, 2081-84 (1988) (noting, in favor of transsubstantive rules, that "procedural complexity defeats substantive rights"), and
267. Robert M. Cover, For James Wm. Moore: Some Reflections on a Reading of the Rules, 84 YALE L.J. 718, 732-39 (1975) (arguing for transsubstantivity),
268. and Geoffrey C Hazard, Jr., Discovery Vices and Trans-Substantive Virtues in the Federal Rules of Civil Procedure, 137 U. PA. L. REV. 2237, 2244-47 (1989) (responding to criticism of the Federal Rules' transsubstantivity), and
269. Richard L. Marcus, Of Babies and Bathwater: The Prospects for Procedural Progress, 59 BROOK. L. REV. 761, 776-79 (1993) (reviewing the merits and drawbacks of transsubstantivity),
270. and Subrin, supra note 29, at 977 (reporting that Charles Clark, the principal draftsman of Rule 8, supported its transsubstantive application for the purposes of "uniformity and simplicity").
271. Compare, e.g.. Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803-04 (7th Cir. 2008) (stating that pleading standards vary depending upon the likely discovery burdens), and
272. Spencer, supra note 57, at 30 n.129 (citing cases suggesting that plausibility-pleading standards depend upon the type of claim alleged),
273. with Stephen B. Burbank, Pleading and the Dilemmas of "General Rules, " 2009 WIS. L. REV. 535, 537 ("The argument (made by some lower courts and scholars) that the standards emerging from Twombly should, and can, be confined to antitrust conspiracy cases confronts the foundational assumptions that the Federal Rules are transsubstantive and cannot be amended by judicial interpretation."), and
274. Ward, supra note 60, at 912 (arguing that varying pleading standards are problematic).
275. See Posting of Scott Dodson to Civil Procedure Prof Blog, Beyond Twombly, http://lawprofessors.typepad.com/civpro/2009/05/beyond-twombly- by-prof-scott-dodson.html (May 18, 2009) ("[A]pplying a restrictive pleading standard transsubstantively will surely result in fewer meritorious cases filed, more meritorious cases dis-missed, and less unlawful conduct redressed ....").
276. A retreat from transsubstantivity no doubt would have its own workability problems, not the least of which would be the difficulty of designing a category-specific system without creating confusion over when a case falls into one or the other category.
277. See ROBERTA. KAGAN, ADVERSARIAL LEGALLISM 15-16 (2001) (noting that private litigation is actually a strong feature of public-interest litigation, providing an alternative or supplement to the administrative state); Wendy Wagner, When All Else Fails: Regulating Risky Products Through Tort Litigation, 95 GEO. L.J. 693, 731-32 (2007) (arguing that private litigation is a useful adjunct to public regulation).
278. Professor Hein Kōtz has put it this way: [A] strong case can be made for the view that to the extent to which private litigation serves the vindication of a public interest, the parties must be equipped with robust discovery procedures to ferret out the truth even at the expense of business or personal privacy. Nor would it seem plausible to put the discovery tools in the hands of judges or parajudicial officials, if only because discovery conducted by a judge or magistrate would not be as thorough as discovery conducted by the parties' lawyers.
279. Kōtz, supra note 19, at 75.
280. Kōtz notes that this is the reasoning behind the German system, stating that [t]he typical case at which the German system is aimed involves a comparatively small amount of money, raises no major issue of public policy, and is merely a dispute between private parties about private rights. In such cases it obviously makes sense to give the judge a leading role in the examination of witnesses and wider powers over the evidentiary process, thereby reducing considerably die amount of lawyer effort and cost in exchange for a modest increase in effort and activity on the part of the judge.
281. Id. at 77.
282. In Europe, public interests generally are addressed by the political branches, not in court, and class actions for such cases are generally unheard of. See id at 75 (stating that European observers find bundling thousands of claims together for one trial to be "astonishing").
283. See, e.g, Credit Suisse Sec. (USA) LLC v. Billing, 127 S. Ct 2383, 2396 (2007) (holding that private antitrust claims could not be asserted at least in part because the SEC already extensively regulates the activity).
284. But see Sale, supra note 96, at 564 (presuming that the SEC, with limited resources, often pursues only the clear cases of fraud that would survive the heightened pleading standard of the PSLRA anyway).
285. See generally Julie C Suk, Procedural Path Dependence: Discrimination and the CivilCriminal Divide, 85 WASH. U. L. REV. 1315 (2008).
286. See Id. at 1331-40 (reporting that procedural advantages for anti-employmentdiscrimination plaintiffs have led to the majority of racial discrimination actions being brought in criminal proceedings).
287. For an excellent example of what this kind of comparative analysis might look like in the pleading context, see Elizabedi G. Thornburg, Detailed Fact Pleading: The Lessons of Scottish Civil Procedure, 36 INT'L LAW. 1185, 1199-1201 (2002) (explaining that recent trends suggest that Scotland is starting to loosen its pleading requirements because the currently stringent standards go too far in preventing plaintiffs from bringing potentially meritorious claims).
288. See CHASE ET AL., supra note 1, at 568 (questioning "whether and how the described differences between American procedure and that prevalent elsewhere can be compromised sufficiently to achieve genuine harmonization"); Dubinsky, supra note 22, at 352 ("Transnationalists specializing in procedural law tend to see America's modern encounter with globalization and its byproduct, transnational litigation, as requiring significant change in American procedural law....").
289. See Geoffrey P. Miller, The Legal-Economic Analysis of Comparative Civil Procedure, 45 AM. J. COMP. L. 905, 917-18 (1997) (arguing that retraining lawyers would be a large economic cost of harmonization).
290. See Dodson, supra note 1, at 134 (explaining that California adheres to code pleading and Louisiana to civil law pleading).
291. ALI/UNIDROIT PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE princ. 11.3 (2006).
292. FED. R. CIV. P. 26(a) (requiring that parties disclose, "without awaiting a discovery request," the names of parties with discoverable information, copies of certain documents, computations of damages, and insurance information).
293. Cf. Clermont, supra note 19, at xii ("All this is not to say that transplants are impossible. ... But any such transplant must be limited in scope and sensitive to context").
294. See supra note 23.
295. See, e.g., Ronald J. Allen et al., The German Advantage in Civil Procedure: A Plea for More Details and Fewer Generalities in Comparative Scholarship, 82 NW. U. L. REV. 705, 76162 (1988) (criticizing Langbein's defense of the German procedural system);
296. Reitz, supra note 20, at 988 (arguing that cultural differences would make it difficult to adopt the German system).
297. MERRYMAN & PÉREZ-PERDOMO, supra note 2, at 3.
298. See Franklin A. Gevurtz et al., Report Regarding the Pacific McGeorge Workshop on Globalizing the Law School Curriculum, 19 PAC MCGEORGE GLOBAL BUS. & DEV. L.J. 267, 284 (2006) (noting "the foreign resentment directed toward U.S. discovery practices"); The Supreme Court, 2006 Term-leading Cases, supra note 136, at 312 ("Discovery is widely believed to be a major problem with the American civil justice system.").
299. For a particularly apt example in the context of class-action development, see Samuel Issacharoff & Geoffrey P. Miller, Will Aggregate Litigation Come to Europe?, 62 VAND. L. REV. 179, 179-80 (2009).
300. A corollary might be the creation of-and increased American involvement in die development of-an international judicial system, as advocated by Professor Jenny Martinez. See generally Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429 (2003).
301. On the success side, Quebec, a faithful civil law country, supplemented its Code widi Americanized discovery principles. See Schlosser, supra note 71, at 17 (stating that Quebec made the change despite "its deep-rooted aversion to anything which is English or American"). On the failure side, Japan's overlay of Americanized procedure onto its civil law code after World War II never took hold.
302. See Marcus, supra note 27, at 162 (explaining that Japan returned eventually to its prewar procedural system, which was borrowed from Germany's procedural system).
303. See Gerhard Walter & Samuel P. Baumgartner, Utility and Feasibility of Transnational Rules of Civil Procedure: Some German and Swiss Reactions to the Hazard-Taruffo Project, 33 TEX. INT'L L.J. 463, 467-68 (1998) (reporting that German and Swiss proceduralists are highly skeptical of the feasibility of European countries adopting some of the more American contributions to the Principles of Transnational Civil Procedure).
304. See Robert M. Bloom, Jury Trials in Japan, 28 LOY. L.A. INT'L & COMP. L. REV. 35, 37-38 (2006) (reporting that mixed-jury trials will begin for certain serious criminal offenses in 2009);
305. Associated Press, South Korea: First Trial by Jury, N.Y. TIMES, Feb. 13, 2008, at A6. In addition, civil law litigation in general is becoming more concentrated and trial-like.
306. See MERRYMAN & PÉREZ- PERDOMO, supra note 2, at 113-15 (stating that die trend is toward more concentrated events but comparing the traditional civil law process to the concentrated version).
307. MERRYMAN & PÉREZ-PERDOMO, supra note 2, at 113.
308. See Antonio Gidi, Gidi Actions in Brazil-A Model for Civil Law Countries, 51 AM. J. COMP. L. 311, 312-13, 313 n.l (2003) (listing countries).
309. See generally Richard A. Nagareda, Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism, 62 VAND. L. REV. 1, 20-26 (2009) (observing foreign convergence toward U.S. class-action models).
310. See Z.W. Julius Chen, Note, Following the Leader: Twombly, Pleading Standards, and Procedural Uniformity, 108 COLUM. L. REV. 1431, 1439-40 (2008) (noting that twenty-six states and the District of Columbia followed Conley's interpretation of pleading rules at the time Twombly was decided).
311. Of course, looking internally to resolve transnational issues may also be limiting. See Dubinsky, supra note 22, at 308 (making this point).
312. See Dodson, supra note 1, at 147-49 (discussing trends in case management and jury awards);
313. Thomas D. Rowe, Jr., Authorized Managerialism Under the Federal Rules-And the Extent of Convergence with Civil-Law Judging, 36 SW. U. L. REV. 191, 193 (2007) (finding some convergence injudicial case management); Ward, supra note 60, at 913 (discussing recent controls and limitations on discovery).
314. See Gidi, supra note 21, at 505 ("[A]n isolated comparison of legal rules would lead to an incomplete understanding and misleading picture of the legal systems.");
315. Marcus, supra note 3, at 711 (cautioning against the comparison of procedural features in isolation).
316. See Mirjan Damaška, The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments, 45 AM. J. COMP. L. 839, 839 (1997) (warning of the unintended consequences of inserting foreign rules into domestic ones without considering the institutional context that led to the rules' initial development);
317. Marcus, supra note 3, at 710 (warning that isolated changes might cause system imbalances).
318. See Dodson, supra note 1, at 143 ("Even small-scale but rapid changes risk causing intrasystem inconsistency if not made with sensitivity to the web of interconnectedness that procedure draws upon.").