Inventing tests, destabilizing systems

Iowa Law Review

Volumn 95, Issue 3, 2010, Pages 821-861

  Clermont, Kevin M ^a   Yeazell, Stephen C ^b  

^a MIT Sloan School of Management   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 77952981195     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (212)

1. Bell Ad. Corp. v. Tw?mbly, 550 U.S. 544 (2007). This decision surprised many observers despite a forewarning that lay, somewhat ambiguously, in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005) (dismissing a securities complaint as insufficient).
2. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). This decision clarified the intricate workings and broad applicability of Twombly.
3. For a judge's lament, see generally Colleen McMahon, The Law of Unintended Consequemzs: Shockwaves in the Lower Courts After Bell Atlantic Corp. v. Twombly, 41 SuFT0LK U. L REv. 851 (2008).
4. By discombobulating a basic area of law, Twombly managed to generate an absolutely extraordinary 22,980 judicial citations in its first thirty-two months, as measured by a Westlaw KeyCite run on January 15, 2010. In its first seventy-two years, Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), garnered only 13,546 citations! Twombly's ascension must represent the all-time fastest accelerating citation count for a new case, as it leaves the early years of the overall citation champs, Anderson v. Liberty Lobby, Inc. and Celotex Cop. v. Catrett, in the dust.
5. See Adam N. Steinman, The In-epressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After the Trilogy, 63 WASH. & LEE L REV. 81, 86-88, 143-45 (2006) (compiling tables of most-cited cases). Of course, Twombly generated a mountain of commentary from academics too, much of which we shall cite herein. Although much of that commentary debated the mysteries of Twombly, some of which Iqbal resolved, a new round of tumult over the combined cases surely lies ahead, as the countless foothills of chatter on the blogs and listservs attest.
6. Act of June 19, 1934. Pub. L No. 73-415, 48 Stat. 1064 (codified as amended at 28 U.S.C. § 2071-2074 (2006)).
7. Some have contended that the Court, in its longtime leading case on pleading, Conley v. Gibson, 355 U.S. 41(1957), departed from the design of the original Rules, so these scholars date notice pleading from 1957 rather than 1938. See, e.g., Geoffrey C. Hazard, Jr., From Whom No Secrets Are Hi4 76 Tx. L REV. 1665, 1685-86 (1998) (arguing that the original Rules maintained at least a modest gatekeeping function for pleading). All would agree that Conley at least settled the debate over notice pleading, creating a peace that lasted for decades
8. See Emily Sherwin, The Story of Conley: Azcedent by, Accident in CIVIL PROCEDURE STORIES 295, 317-18 (Kevin M. aermont ed., 2d ed. 2008) (describing the impact of Conley).
9. FED. R. Civ. P.8(a) (2). The language remains the same in the current version of the Rule.
10. See RICHARD H. FIELD, BENJAMIN KAPL4N & KEVIN M. CLERMONT, MATERIALS FOR A BASIC COURSE IN QVIL PROCEDURE 1069-76, 1117-23 (10th ed. 2010) (describing the historic regime);
11. STEPIIEN C. YEAZELL, CIVIL PROCEDURE 333-44 (7th ed. 2008) (same).
12. See 5 CHARLES AlAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1202 (3d ed. 2004) (elaborating the motivation for the federal reform)
13. FED. R. Civ. P. Folud 11. After an allegation ofjurisdiction, the current version of Form 11 offers these two sentences: "On [date], at [place], the defendant negligently drove a motor vehicle against the plaintiff. As a result, the plaintiff was physically injured, lost wages or income, suffered physical and mental pain, and incurred medical expenses of $[aznount]." Id. The original Form 9 provided basically the same form, with a little more detail.
14. See, e.g., CHARLES E. CLARK, HANDBOOK OF THE Lkw OF CODE PLEADING 54-57, 240-45 (2d ed. 1947) (extolling simplified pleading);
15. Charles E. Clark, SimplWd Pleading, 2 F.R.D. 456, 460-62 (1942) (same). Whether or not Judge Clark favored "notice pleading," he certainly supported simple pleading. See Sherwin, supra note 6, at 299-303 (discussing Clark's view and its critics).
16. See ADVISORY COMM. ON THE RuLES FOR CIVIL PROCEDURE, REPORT OF PROPOSED AMENDMENTS TO THE RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICr COURTS 18-19 (1955) (explaining reasons for not amending FED. R. Civ. P. 8(a)(2)), reprinted in 12A CHARLES AlAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE & RICHARD L MARCUS, FEDERAL PRACI1CE AND PROCEDURE app. F, at 644-45 (2009);
17. Richard L Marcus, The Puzzling Pmistence of Pleading Practice, 76 TEx. L REv. 1749, 1751-52 & n.18 (1998) (describing the decision in 1993-1995 not to amend FED. R. Civ. P. 8(a) (2)).
18. Bell AU. Corp. v. Twombly, 550 Us. 544, 549-50 (2007).
19. Id. at 553-54.
20. See Id. at 550-51 (summarizing the plaintiffs' complaint).
21. Id.at 564.
22. See Id. at 564-69 (explaining why the defendants' conduct fell short of conspiracy).
23. Twombly, 550 U.S. at 565 n.10.
24. Id. at 570. The case died after the Court's decision, with the district court's file closing later in 2007.
25. See Id. at 555, 564 & n.9 (stating that because "more than labels and conclusions" are required in pleadings, the plaintiffs could not meet the standard with "mere[] legal conclusions resting on the prior allegations").
26. Id.at570.
27. Id. at 596 (Stevens,J., dissenting).
28. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953-54 (2009) (stating that while the pleading standard covers all civil actions, the case before the Court "fail[ed] to plead sufficient facts to state a claim").
29. Id. at 1942.
30. See Id. at 1951 (stating that "the allegations are conclusory and not entitled to be assumed true" because "[t]hese bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a 'fonnulaic recitation of the elements' of a constitutional discrimination claim" (quoting Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007))).
31. See Id. at 1951-52 ("To prevail [on the constitutional discrimination claim], the complaint must contain facts plausibly showing that petitioners purposefully adopted a policy of classifying post-September-il detainees as 'of high interest' because of their race, religion, or national origin.").
32. Id. at 1950.
33. Iqbal, 129 S. Ct. at 1949. On remand, the Second Circuit sent the case back to the district court for a decision on whether to grant leave to amend, Iqbal v. Ashcroft, 574 F.3d 820, 822 (2d Cir. 2009). and: Since then, Iqbal's lawyer, Alex Reinert, said he has been in settlement talks with the government. But if the case is not settled, Reinert said he plans to amend the pleadings to include facts that the Court said were missing-facts he obtained during a period of discovery before the high court ruled. "We think we can meet the new standard," said Reinert, who teaches at Yeshiva University Benjamin N. Cardozo School of Law. "We absolutely still could win."
34. Tony Mauro, Cwups Unite to Keep Cases on Docket: PlaintU? Lauryers Seek to Stop Dismissals After Iqbal Decision, NAT'L L.J., Sept. 21, 2009, at 1, 32, available at http://www.law.com/jsp/article. jsp?id=1202433931370. In a very similar case, with slightly more specific allegations, the Ninth Circuit approved the complaint. al-Kidd v. Ashcroft, 580 F.3d 949, 973-77 (9th Cir. 2009). But see Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en basic) (dismissing complaint).
35. See generally Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing a civil-rights claim against public officials based on the Fourth Amendment).
36. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982) (establishing qualified immunity).
37. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 512 (1985) (authorizing collateral-order review); Nixon v. Fitzgerald, 457 U.S. 731, 731-32 (1982) (same).
38. Iqba4 1295. Ct. at 1944.
39. Id. at 1949 (citations to Twombly omitted).
40. The Court was construing the word "showing" in Rule 8(a) (2) governing claims, which does not appear in Rule 8(b) or (c) on answers, and was establishing a gatekeeping test for people trying to get into court, which does not bear on the opposing party. Nevertheless, in the current confusion, some lower courts are applying the new test to defenses as well. See, e.g., Kaufmann v. Prudential Ins. Co. of Am., No. 09-10239 2009 WI.. 2449872, at 1 (D. Mass. Aug. 6, 2009) (dictum) ("Assuming, without deciding, that sauce for the goose is sauce for the gander, the court is inclined to think that a defendant has the same Rule 8 obligations ⋯ as does a plaintiff.")
41. Shinew v. Wszola, No. 08-14256, 2009 WI.. 1076279, at *5 (E.D. Mich. Apr. 21, 2009) (finding the affirmative defense insufficiently pled under Twombly). Likewise, lower courts are magnifying the destabilization by confusingly applying the new test to issues beyond the merits, such as jurisdiction, see, for example, Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.Sd 1063, 1070 (10th Cir. 2008) (applying Twombly to personal jurisdiction, but using it to uphold jurisdiction), or class allegations, see, e.g., Hodczak v. Latrobe Specialty Steel Co., No. 08-649, 2009 WL 911311, at *8 (W.D. Pa. Mar. 31, 2009) (finding class allegations too speculative under Twombly).
42. See Iqbal, 129 S. Ct. at 1950 ( complaint has alleged-but it has not 'show 'that the pleader is entitled to relief.'" (quoting FED. R. C P. 8(a) (2))).
43. FLEMINGJAMES,JR., GEOFFREY C. HAZARD, JR. & JOHN LEUBSDORF, CiviL PROCEDURE 242-43 (5th ed. 2001) (explaining that the judge is to resolve legal questions in the ordinary fashion to determine whether the law recognizes the alleged claim).
44. The text here is a distillation of our best reading of the Court's opinions, and the rest of this Article will flesh it out. Previously, some struggled to make sense of Twombly by reading it narrowly, e.g., Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Coutl Access, 94 IOWA L. REv. 873, 935-36 (2009) [ Bone, Pleading Rules] (arguing that what he saw as the Court's "thin plausibility" standard could be justifiable, if adopted by the proper statute or rule process). But Iqbal undid them.
45. See Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85 NOTRE DAME L. REv. (forthcoming 2010), available at http://ssm.com/abstract=1467799 [ Bone, Plausibility Pleading Revisited] (criticizing "thick" screening). Now, others are taking up the same task
46. Adam N. Steinman, The Pleading Problem 62 STAN. L. REv. (forthcoming 2010), available at http://ssrn.com/abstract= 1442786 (reconciling Twombly and Iqbal with pre-Twombly authority by developing a new paradigm of "plain pleading"). Only time will tell whether their efforts to get lower courts to confine these cases will warrant an evaluation like that of Samuel Johnson on second marriages:defendant has an obligation to participate.
47. See DT Enters., Inc. v. Wells, 130 S. Ct. 7, 7 (Kennedy, J., joined by Roberts, Cj. & Sotomayor, J., in a separate statement upon denial of certiorari) (suggesting that due process requires, in state court, some consideration of the merits before imposing class-action notice costs on the defendant). Although Ene does not carry state pleading law into federal court, sometimes federal pleading law will preempt state law in state court.
48. See Kevin M. Clermont, Reverse-Erie, 82 N0TRE DAME L REv. 1, 38-41 (2006) (treating cases like Brown v. W. Ry., 338 U.S. 294 (1949)). Usually, however, state pleading law applies in state court, and federal pleading law applies in federal court. The resulting disparity between lenient state pleading and robust federal gatekeeping will increase the considerable incentive to remove.
49. See Kevin M. Clermont, Litigation Realities Rsdux 84 NoTRa DAME L. REv. 1919, 1922-27 (2009) [ Qermont, Litigation Realities Redux] (providing data that show a huge increase in the removal rate over the last twenty years).
50. See CLARK, supra note 11, at 225-40 (treating code pleading); 5A WRIGHT & MILLER, slLpra note 9, §§ 1296-1301.1 (treating FED. R. Civ. P. 9(b) and securities fraud).
51. See Swierkiewicz v Sorema N.A., 534 U.S. 506, 513 (2002) (stating that the simplified pleading standards established by FED. R. Civ. P. 8(a) apply to all civil actions with limited exceptions);
52. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U-S. 163, 168 (1993) (finding that a "'heightened pleading standard'" was 'impossible to square-with the liberal system of 'notice pleading' set up by the Federal Rules")
53. Joseph A. Seiner, After Iqbal, 45 WAKE FOREST L REV. (forthcoming 2010) (manuscript at 16-19), available at http://ssm.com/abstract=1477519 (arguing that these older cases survived Twonzbly and Iqbal).
54. Twombly, 550 U.S. at 570.
55. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
56. see infra text accompanying notes 77-87, 111-14 (trying further to define "plausibility"). By contrast, in Tellabs, Inc. v. Makor Issue.s & Rights, Ltd., 551 U.S. 308, 323-24 (2007), the Court construed "strong inference" in the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4(b) (2) (2006), to mean that the plaintiff's allegations must make the inference of scienter more than merely plausible or reasonable, and instead make it cogent and at least as compelling as any opposing inference of nonfraudulent intent. Cf Geoffrey P. Miller, Pleading After Tellabs, 2009 Wis. L. REv. 507, 532 (arguing that the statute has made the motion to dismiss in securities cases a hybrid falling somewhere between Rule 12(b) (6) and Rule 56).
57. In Twombly, 550 U.S. at 556, the Court said: 'Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage
58. it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement." In Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 556), the Court said: 'The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." But these statements did not disavow a probabilistic standard-only a standard as high as more-likely-than-not.
59. The standards of decision under Rules 12(b) (6) and 56 for issues of pure law are identical. As to facts, the Court's articulation and application of the new test in Twombly and Iqbal may appear to require a stronger claim than does summary judgment, but that relationship would be nonsensical. It would instead make policy sense to require a weaker claim at the pleading stage, but (1) there is a limited number of choices among decisional standards, (2) any standard less demanding than summary judgment's reasonable-possibility test would equate to the old scintilla or slightest-possibility standard, and (3) nothing in Twombly or Iqbal suggests that the Court meant such a low standard.
60. See Kevin M. Clermont, Procedure's Magical Number Three: Psychological Bases for Standards of Decision 72 CORNELL L REV. 1115,1122 & n.36, 1127 n.54 (1987) (distinguishing the slightest-possibility test from the reasonable-possibility test). The Court rejected a Rule 12(b) (6) test that would knock out only 'allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff's recent trip to Pluto, or experiences in time travel." Iqbal, 129 S. Ct. at 1959 (Souter, J., dissenting). More convincingly, Twombly and Iqbal were not adopting a scintilla test because it would not serve the Justices' gatekeeping purpose.
61. See infra note 57 and accompanying text (discussing the frivolity test). So, unless the Court has relaxed the traditional summary-judgment standard by its decision in Scott v. Harris, 550 U.S. 372 (2007), and relaxed only that standard, the Twombly-Iqbal Courts seem to have collapsed the Rule 12(b) (6) and Rule 56 standards of convincingness into one.
62. See Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly 11-13, 19 (Ill. Pub. Law, Research Paper No. 09-16, 2009), available at http://ssrn.com/abstract=1494683 (arguing that the same reasonable-possibility test applies under Rules 12(b) (6) and 56).
63. We are speaking here of the equivalence of the standards of decision, expressed in terms of convincingness, not of the frequency of granting the two kinds of motions in practice. As to frequency, Twombly-Iqbal tests the plausibility of only the overall inference of liability, while summai-y judgment can burrow down to the fact-by-fact level. Moreover, the motions are available in different circumstances that are unequally common: Twombly-Iqbal will have bite where the plaintiff cannot or will not plead detail, while Rule 56 will be applicable wherever the evidence imbalance is stark. In a case where both motions are available, it is hard to predict which motion in practice would more easily succeed if it were the only one made. On the one hand, fear of prematurely interceding and triggering an appeal, and of deciding without airing the evidence, will discourage the judge from granting a Rule 12(b) (6) motion. On the other hand, granting an early pleading motion will better serve the movant's interests and the court's docket than granting a later summary judgment, so the judge may look at the complaint by itself and see conclusoriness or implausibility. That is, the incentives seem to offset each other.
64. A less fundamental distinction is that the burden of persuasion for summary judgment is on the movant, but under Twombly-Iqbal it appears to fall on the plaintiff to show a reasonable inference. Indeed, putting an initial burden on the plaintiff distinguishes Twombly-Iqbal from all other pleading motions. Nevertheless, this difference is not really important. First, the burden of production can shift to the opponent on summary judgment pursuant to FED. R. Civ. P. 56(e) (2). Second, whether the defendant must show that the plaintiff cannot create a reasonable question or whether the plaintiff must show that a reasonable question exists is a paper-thin distinction, especially given that on a Rule 12(b) (6) motion there is no evidence to present.
65. See Iqbal, 129 S. Ct. at 1943-44 (describing and quoting the complaint)
66. Twombly, 550 U.S. at 550-51 (same). The Iqbal complaint is available at 2004 WL 3756442 (E.D.N.Y. Sept. 30, 2004). The Twombly complaint is available at 2003 WL 25629874 (S.D.N.Y. Apr. 14, 2003).
67. Iqbal, 129 S. Ct. at 1951 (citations to Twombly omitted).
68. See 5 WRIGHT & MILLER, supra note 9, § 1218, at 267 ("It should be clear from an examination of the Official Forms that the federal rules do not prohibit the pleading of facts or legal conclusions as long as fair notice is given to the parties.").
69. See supra note 10 (providing the Form's text).
70. Complaints seeking recovery of debts or mistaken payments (FED. R. CIV. P. Foiu 10, 21), specific performance of a contract to convey land (FED. R. CIV. P. FORM 17), or interpleader (FED. R. CIV. P. FORM 20), and complaints alleging negligence under the Federal Employers' Liability Act (FED. R. CIV. P. FORM 13), conversion of property (FED. R. CIV P. FORM 15), or patent or copyright infringement (FED. R. CIV. P. FORMS 18-19), all consist of terse, undetailed, conclusory language.
71. FED. R. Civ. P. FORM 18. Only occasionally does one encounter an instruction like that in Form 14 (Complaint for Damages Under the Merchant Marine Act) requiring the plaintiff to " the weather and the [unseaworthy) condition of the vessel." FED. R. CIV. P. FORM 14.
72. Jqbal, 129 S. Ct. at 1951.
73. A court will disregard an allegation in a pleading that contradicts a proposition judicially noticed. The court reads the attacked pleading as if such untenable allegations were omitted, so that a demurrer or motion to dismiss does not admit any allegation in the attacked pleading running counter to the court's judicial knowledge. The classic illustrative case at common law was Cole v. Maunder, (1635) 2 Rolle's Abr. 548 (KB.), in JAMES BARR AMES, A SELECFION OF CASES ON PLEADING AT COMMON Lkw 2,2 (Cambridge, Mass.,John Wilson & Son 1875) (translating the case from Law French to English), where an allegation that stones were thrown "molliter a molli manu" ("gently and with a gentle hand") was held not to be admitted by demurrer, "for the judges say that one cannot throw stones molliter." Id. In Southern fly. Co. v. Covenia, 29 S.E. 219, 220 (Ga. 1896), the court took judicial notice that a child under two years of age was unable to have any earning capacity and held on demurrer that an allegation that such a child performed valuable services did not stand as admitted. A complaint that judicial notice perceives as frivolous will not survive a pleading challenge. Cf Clinton v. Jones, 520 U.S. 681, 708 (1997) ("Most frivolous and vexatious litigation is terminated at the pleading stage or on summary judgment, with little if any personal involvement by the defendant.
74. See Fed. Rules Civ. Proc. 12, 56."). On the variety of other frivolity tests
75. see Suja A. Thomas, Frivolous Cases, 59 DEPAUL L. REV. (forthcoming 2010), available at http://ssrn.com/abstract=141 1803. A particularly instructive context is the frivolity test under 28 U.S.C. § 1915 (2006) for proceeding in forina pauperis, a test that comes early and with no procedural protections, and can even come sun sponte before answer. In Denton v. Hernandez, 504 U.S. 25 (1992), the Court explained: As we stated in Neitzke [ Williams, 490 U.S. 319 (1989)], a court may dismiss a claim as factually frivolous only if the facts alleged are "clearly baseless," 490 U.S., at 327, a category encompassing allegations that are "fanciful," id, at 325, "fantastic," Id., at 328, and "delusional," ibitL As those words suggest, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible. Id. at 32-33. Thus, the § 1915 standard is demanding on the defendant, like a scintilla test.
76. See generally Milton Roberts, Annotation, Standards for Determining Whether Proceedings In Forma Pauperis Are Frivolous and Thus Subject to Dismissal Under 28 U.S.C.A. § 1915(d), 52 A.LR. FED. 679 (1981) (collecting cases in its supplement to § 5-6, 8-9); cf Eastway Constr. Corp. v. City of New York, 637 F. Supp. 558, 565 (E.D.N.Y. 1986) ("'Frivolous' is of the same order of magnitude as 'less than a scintilla.'"), modified, 821 F.2d 121 (2d Cir. 1987). Twombly-Iqbal gives the plaintiff similarly scant procedural protections, but requires the plaintiff to make the tangibly stronger showing of plausibility.
77. See supra text accompanying note 47 (suggesting that plausibility means "reasonably possible")
78. Iqbal, 1295. CL at 1951-52 (citation to Twombly omitted).
79. See Michael C. Dorf, Iqbal and Bad Apples, 14 LEWIs & CLARK L REV. 217, 224-28 (2010) (arguing that only the Court's acceptance of a few-bad-apples narrative could lead it to think the allegations were implausible).
80. See Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalisnz, 122 HARv. L REV. 837,838-42(2009) (expressing a similar concern in connection with summary judgment)
81. Suja A. Thomas, The Fallacy of Dispositive Procedure 50 B.C. L REV. 759, 759 (2009) (generalizing the concern); cf supra note 47 and accompanying text (suggesting, optimistically, that "reasonable possibility" remains the test).
82. Iqbal, 129 S. Ct. at 1949.
83. Id. at 1950.
84. See supra text accompanying notes 5-12 (describing the original Rules reform).
85. See 5 Wright & Millet, supra note 9, §§ 1201-1202 (treating the history and purposes of federal pleading Rules).
86. See Doe ex rel Gonzales v. Butte Valley Unified Sch. Dist., No. CW. 09.245 WBS CMK, 2009 WL 2424608, at *8 (E.D. Cal. Aug. 6, 2009) ("Now, however, even the official Federal Rules of Civil Procedure Forms⋯ have been cast into doubt by IqbaL"). A complaint literally tracking a Form would presumably survive.
87. See FED. R. C P. 84 (providing that "forms in the Appendix suffice under these rules"). But a complaint conforming to the spirit of the Forms, but on different facts, would be in jeopardy.
88. See Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM U. L. REV. 553, 556 (2010) (finding a significant increase in the rate of dismissal in a sample of Westlaw cases, especially for civil-rights cases)
89. Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. ILL. L. REV. 1011, 1029 (finding an insignificant increase in the rate of dismissal among a small sample of Title VII cases on Westlaw)
90. Kendall W. Hannon, Note, Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions 83 NOTRE DAME L. REV. 1811, 1837 (2008) (examining Westlaw cases and finding that the courts do not seem to be dismissing cases at a significantly higher rate, except for civil-rights cases, where the rate of granting dismissal jumped by eleven percent). Even putting aside the selection-effect concerns of litigants' adjusting to the change in pleading law, these studies reveal only the district courts' perception of Conley and Twombly (or Iqbal), not the actual dismissal rate. The reason is that their methodology involves searching for citation to the perceivedly permissive Conley in the early cases and to the perceivedly restrictive Twombly in the later cases, which would seem to bias the sample in favor of overstating the increase in the actual dismissal rate after Twombly in the early period a dismissing court might be less apt to cite Conley than a court denying dismissal in that same time period, while in the later period a dismissing court might be more apt to cite Twombly than a denying court. (The Hatamyar study added the conjunctive search term "no set of facts" for the early cases and "plausibl" for the Twombly cases, compounding the effect. Hatamyar, supra, at 585.) Also, limiting the study to cases reported on Westlaw, and ignoring all the unreported decisions on motions to dismiss, might accentuate this bias. However, if one were to compile all dismissal decisions, the effects of Twombly and Iqbal would be hard to measure because these precedents apply to only a restricted subset of motions to dismiss (and result in final dismissal for a much smaller subset). These studies acknowledge, however, that they were not measuring the effect on actual dismissal rate, and provide an interesting look at these Supreme Court decisions.
91. For more on the possibly varying substantive impact of Twombly-Iqbal see Elizabeth 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, 532-36 (2010). For a more general argument that procedural change inevitably alters substantive law
92. see Thomas O. Main, The Procedural Foundation of Substantive Law, 87 WASH. U. L. REV (forthcoming 2010), available at http://ssrn.com/abstract= 1113916.
93. Posting of David Shapiro, Professor, Harvard Law School, dshapiro@law.harvard.edu, to civ-pro@listserv.nd.edu (Oct. 8, 2009) (on file with the Iowa Law Review).
94. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953-54 (2009).
95. But see, e.g., Smith v. Duffey, 576 F.3d 336, 340 (7th Cir. 2009) (Posner, J., dictum) (suggesting that Twombly and Iqbal were special cases involving complex litigation and qualified immunity, respectively)
96. Transcript of Proceedings at 2,8, Madison v. City of Chicago, No. 09 C 3629 (N.D. III. Aug. 10, 2009) (Shadur,J.) (declaring "you don't have to be a nuclear physicist to recognize that Twombly and Iqbal don't operate as a kind of universal 'get out of jail free' card" and refusing to apply them in an employment case). For additional analysis, see also supra note 37 (citing optimistic readings of Twombly and Iqbal). For a more plausible but still optimistic outlook on constraining the new test.
97. see Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. PA. L. REV. 473, 507 (2010) (suggesting, most interestingly, that discovery can proceed, even after Iqbal, while the motion to dismiss is pending).
98. An experienced litigator, Tom Goldstein, predicts that Iqbal will be "the basis for an attempt to dismiss more than 50 percent of all the complaints filed in federal court.'" Melinda Hanson, Civil Cases: Iqbal, Ricci, Wyeth, NAMUDNO Tagged as Landmark,* Opinions of Term, 78 U.S.L.W. 3025, 3026 (July 21, 2009). Even the defendants in the Duke lacrosse case are pushing Twombly-Iqbal arguments.
99. See Durham-in-Wonderland, The Players' Iqbal Briefs, http://durham wonderland.blogspot.com/2009/07/players-iqbal-briefs.html (July 20, 2009, 00:01 EDT) (discussing those motions specifically);
100. see also Justia.com, Evans et al. v. Durham, North Carolina, City of et al., http://news.justia.com/cases/featured/north.carolina/ncmdce/1:2007cv00739/ 46882/(last visited Feb. 28, 2010) (collecting all litigation documents in that case)
101. Fowler v. Univ. of Pittsburgh Med. Ctr. Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949).
102. Seek e.g., id. (reversing the dismissal by finding that the plaintiff had stated a plausible discrimination complaint).
103. See, e.g., Branham v. Dolgencorp, Inc., No. 6:09-CV-00037, 2009 WL 2604447, at *2 (W.D. Va. Aug. 24, 2009) (dismissing a complaint, with leave to amend, in a slip-and-fall case). The court stated: In this case, the Plaintiff has failed to allege any facts that show how the liquid came to be on the floor, whether the Defendant knew or should have known of the presence of the liquid, or how the Plaintiffs accident occurred⋯. While consistent with the possibility of the Defendant's liability, the Plaintiff's conclusory allegations that the Defendant was negligent because there was liquid on the flood [sic] but that the Defendant failed to remove the liquid or warn her of its presence are insufficient to state a plausible claim for relief. Id.
104. See Hartnett, supra note 69, at 491-93 (equating 'conclusory" to alleging the claim's elements).
105. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009);
106. see Steinman, supra note 37, at 39-45 (defining 'conclusory" as the failure to identify the real-world acts or events that entitle the plaintiff to relief, that is, the failure to allege concretely what happened). But cf Bone, Plausibility Pleading Revisited, supra note 37, at 21-23 (arguing that this first step is inherently incoherent and that courts should apply the plausibility test to the complaint as a whole).
107. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1960-61 (2009) (Souter, J., dissenting) (identifying allegations that the majority, but not he, considered conclusory). By contrast, theCourt found borderline allegations to be nonconclusory in Erickson v. Pardus, 551 U.S. 89 (2007), discussed infra note 107.
108. On the meaning of "plausibility," compare Charles B. Campbell, A 'Plausible" Showing After Bell Atlantic Corp. v. Twombly, 9 NEV. L J.1;. 1, 2 (2008) (translating "plausible" to mean that a complaint must "contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory'" (quoting In ,re Plywood Antitrust Litig., 655 F.2d 627, 641 (5th Cir. 1981)))
109. with Douglas G. Smith, The Twombly Revolution?, 36 PEPP. L. REV. 1063, 1066 (2009) (translating "plausible" to mean "that the allegations in a plaintiff's complaint must be logically coherent in the sense that, if accepted as true, they are necessary and sufficient to establish a cause of action"). The subsequent Iqbal decision implies that both were reading Twombly too narrowly. See supra text accompanying notes 45-49 and infra text accompanying notes 111-14 (trying further to define " plausibility"); cf Elizabeth Chamblee Burch, There's a Pennoyer in My Foyer:Civil Procedure According to Dr. Seuss, 13 GREEN BAG 2D 105, 116 (2009) (suggesting that plausibility might be defined as a "yopp").
110. Transcript of Oral Argument at 13, Iqbal, 129 S. Ct. 1937 (No. 07-1015), 2008 WL 5168391.
111. See, e.g., id. at 23 (offering Justice Kennedy's support for Justice Breyer's concerns). Justice Souter was much more skeptical of the hypothetical's plausibility: But in Justice Breyer's case, the-that may be the case if the claim is that the president of Coke was personally putting mouses in bottles. But the claim, it seems to me, that the Attorney General or the Director of the FBI was establishing a policy of no release until cleared or a policy that centered on people with the same characteristics as the hijackers does not have that kind of bizarre character to it and, I think, would not run afoul of the plausibility standard. Id. at 15
112. see also id. at 39-40 (returning to the hypothetical). As an advocate, Solicitor General Gregory G. Garre saw the hypothetical in a way completely opposite to Justice Souter's, arguing in rebuttal that "the Attorney General is much different than the president of Coca Cola in that he is entitled to a presumption of regularity of his actions, so that-that standard itself ought to affect how one views the complaint" Id. at 58. Chief Justice Roberts addressed the running hypothetical and got right to its heart "[T]o follow up on Justice Souter's question, how are we supposed to judge whether we think it's more unlikely that the president of Coca Cola would take certain actions as opposed to the Attorney General of the United States?" Id. at 40. But he evaded the hypothetical by later switching the analogy to a situation in which "the allegation is that the president of Coca Cola is individually involved in a particular price fixing scheme," and then apparently concluding that his hypothetical and Iqbal both failed the Twombly test Id. at 42-43. Justice Stevens adjusted the hypothetical similarly, but drew the opposite conclusion. Id. at 40-42.
113. See Benedikt Goderis & Mila Versteeg, Human Rights Violations After 9/11 and the Role of Constitutional Constraints 12, 17-18 (Univ. of Oxford, Dep't of Econ., Discussion Paper No. 425, 2009), available at http://ssrn.com/abstract=1374376 (finding an increase in human-rights violations in various countries after 9/11, but also finding that the existence of independent judicial review limited the increase).
114. For examples of cases discussing the effect of national emergencies on constitutional provisions, see N.Y. Times Co. v. United States, 403 U.S. 713
115. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (involving the President's seizure of steel mills).
116. See U.S. Courts, Summary of Judicial Vacancies, http://www.uscourts.gov/ judicialvac. cfm (last visited Feb. 28, 2010) (indicating that one hundred judicial vacancies currently exist);
117. cf ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS 2008, at 38 tbl.12 (2008), http://www.uscourts.gov/judbus2008/ Judicialflus2008.pdf (indicating that over three hundred senior district judges also exist).
118. See, e.g., Moss v. U.S. Secret Serv., 572 F.3d 962,972 (9th Cir. 2009) (applying Twombly-Iqbal to dismiss a suit against the government by anti-Bush demonstrators, with leave to amend the complaint filed before the "significant change, with broad-reaching implications," of Twombly-Iqbal)
119. Alison Frankel, Two More 'Iqbal Dismissals Emerge in Psvduct Liability Cases, LAW.COM, Aug. 4, 2009, http://www.law.com/jsp/law/LawArticleFriendly.jsp? id= 120243273834 6 (opining that Iqbal "is quickly becoming the best thing to happen to the products liability defense bar since Dauben").
120. Ordinarily, a complaint that survives a Rule 12(b) (6) motion cannot immediately be appealed by a defendant who believes that it is implausible, because the denial is not a final decision. See 28 U.S.C. § 1291 (2006) (setting out the jurisdiction of courts of appeals). If the defendant declines to answer, the trial court will enter judgment for the plaintifi and appeal will lie. If the defendant proceeds to answer, as is much more likely, the appellate court will treat the point as waived and, upon final judgment, will not reexamine the action of the trial court in denying the motion to dismiss. Cf Varghese v. Honeywell Int'l, Inc., 424 F.3d 411, 426 (4th Cir. 2005) (holding that a pretrial denial of summary judgment was not reviewable on appeal after trial, even for a motion made on a purely legal ground). It is true that some of the same Rule 12(b) (6) questions may reappear in a different guise. For example, at trial the defendant might move for judgment as a matter of law, contending that the plaintiff's proof does not constitute a claim for relief; the trial court's denial of that motion can be preserved for review on appeal from the final judgment. Thus, the appellate court may in effect be passing on the same question of law that confronted the trial judge on the motion to dismiss the complaint, inasmuch as the question of legal sufficiency will be the same when the proof has established the allegations of the complaint and nothing more. Nevertheless, any plausibility testing of the pleading should not reappear in reviewable form. In any event, no rational court would overturn a proven claim on the ground that its pleading was implausible or conclusory.
121. See Anthony Martinez, Case Note, Plausibility Among the Circuits: An Empirical Suwey of Bell Atlantic Corp. v. Twombly, 61 ARK. L. REV. 763, 770 (2009) (concluding-nonempirically-that " new plausibility standard created in Twombly is not at all clear").
122. See, e.g., Keith Bradley, Pleading Standards Should Not Change After Bell Atlantic v. Twombly, 102 Nw. U. L. REV. COLLOQUY 117, 122 (2007), http://www.law. northwestern.edu/lawreview/colloquy/2007/3l/ lrcoll2007n3lBradley.pdf ('"Plausibility' is an element of a certain kind of antitrust conspiracy claim, not a standard for pleadings in general.")
123. 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, 631-36, 639 (2007) (approving, with reservations, Twombly's application of pleading's substantive-sufficiency test to this antitrust case)
124. 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) (taking a very narrow view of Twombly); cf Smith, supra note 77, at 1083-85 (suggesting that Twombly applied only to complex cases involving significant discovery).
125. Just as for Twombly and Iqbal, differing substantive law will serve to distinguish the application of the pleading test. For example, the Fifth Circuit stated: In order to state a claim under RICO, a plaintiff must allege, among other elements, the existence of an enterprise. Brunig's complaint does not make plausible that either a legal enterprise or an association-in-fact existed. His complaint alleges that "Clark, the Trust, CPLI, Liedtke, BBC, and others, known and unknown, associated themselves in fact." This is a conclusory statement, a recitation of the elements masquerading as facts. It does not make it any more or less probable that the listed parties have an existence separate and apart from the pattern of racketeering, are an ongoing organization, and function as a continuing unit as shown by a hierarchical or consensual decision making structure. Brunig v. Clark, 560 F.3d 292, 297 (5th Cir. 2009).
126. see also Hartnett, supra note 69, at 496-97 (exploring the dependence of plausibility on substantive law).
127. Ironically, Canley v. Gibson, 355 U.S. 41(1957), and its version of notice pleading came about through a similarly flawed legal process.
128. See Sherwin, supra note 6, at 317 (describing Conley as an accidental precedent). But being not so novel or unpredictable, Conky induced calm rather than disruption.
129. See Robert G. Bone, The Process of Making Process: Court Rulemaking Democratic Legitimacy, and Procedural Efficacy, 87 GEO. L.J. 887, 955 (1999) justifying rulemaking as akin to common-law reasoning, as long as rulemaking centers on "inferring general principles from existing practice and choosing rules that implement those principles well in light of practice realities").
130. See generally Paul D. Carrington, The New Order in Judicial Rulemaking, 75 JUDICATURE 161 (1991) (defending the rulemaking process against factionalism).
131. See Catherine T. Struve, The Paradox of Delegation: Interpreting the Federal Rules of Civil Procedure 150 U. PA. L. REV. 1099, 1147-52 (2002) (defending judicial restraint in reading the Federal Rules). But see Max Huffman, The Necessity of Pleading Elements in Private Antitrust Conspiracy Claims, 10 U. PA. J. BUS. & EMP. L. 627, 640-45 (2008) (approving Twombly's test as a transsubstantive rule implicit in Rule 12(b) (6)'s requirement that the pleader show entitlement to relief).
132. For examples of such congressional intervention, see generally Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.)
133. Civil Justice Reform Act of 1990, Pub. L. No. 101.650, tit. I, 104 Stat. 5089, 5089 (codified at 28 U.S.C. § 471-482 (2006)).
134. See 28 U.S.C. §§ 2072-2074 (2006) (comprising the current version of the Rules Enabling Act).
135. Id. § 2073(c).
136. See generally WINIFRED R. BROWN, FED.JUDICLAL CFR., FEDERAL RULEMAKING: PROBLEMS AND POSSIBILITIES (1981) (cataloguing the rulemaking problems of the participatory process, institutional structure, and broad scope); Stephen C. Yeazell,Judging Rules, RulingJudges, LAW & CONTEMP. Probs., Summer 1998, at 229 (arguing for simplifying the rulemaldng process).
137. See STEPHEN N. SUBRIN & MARGARET Y.K. WOO, LITIGATING IN AMERICA CIVIL PROCEDURE IN CONTEXT 121-27 (2006) (arguing that the debate must occur in a broad historical, social, economic, political, and jurisprudential context). For a comparative perspective on the debate, see Scott Dodson, Comparative Convergences in Pleading Standards, 158 U. PA. L. REV. 441, 452-55 (2010) (describing heightened-fact-pleading regimes elsewhere); ef Andrea Cheuk, Comment, The Li'an ("Docketing") Process: Banrries to Initiating Lawsuits in China and Possible Reforms, 26 UCLA PAC. BASIN L.J. 72, 75-79 (2008) (describing a system of extreme policing of complaints).
138. The ABA uploaded the following amicus briefs for Iqbal. Brief of William P. Barr et al. and Washington Legal Foundation as Amici Curiae in Support of Petitioner; Brief of National Civil Rights Organizations as Amici Curiae in Support of Respondents; Brief of Amici Curiae, The Sikh Coalition et al. in Support of Respondent Iqbal; Brief for the American Association for Justice as Amici Curiae Supporting Respondent, Brief of Amici Curiae Japanese American Citizens League et al. in Support of Respondent, Brief for Ibrahim Turkmen et al. in Support of Respondents; and Brief of Professors of Civil Procedure and Federal Practice as Amici Curiae in Support of Respondents. ABA, Merit Briefs for December Supreme Court Cases, Term 2008-2009 (ABA Division for Public Education), http://www.abanet.org/publiced/preview/briefs/dec08.shtml#ashcroft (last visited Feb. 28, 2010). For Twombly, FindLaw uploaded the following amicus briefs in support of petitioners: Brief of Washington Legal Foundation as Amicus Curiae in Support of Petitioners; Brief for the United States as Amicus Curiae Supporting Petitioners
139. Brief of the Commonwealth of Virginia and 15 Other States as Amici Curiae in Support of the Petitioners; Brief of Aniici Curiae Legal Scholars in Support of Petitioners; and Brief of the Chamber of Commerce of the United States of America et al-and in favor of the respondents: Brief of the American Antitrust Institute in Support of Respondents. FindLaw, Supreme Court Docket: Bell Atlantic Corporation v. Twombly, 05-1126, http://supreme.lp.findlaw.com/supreme- court/docket/2006/november/05 126.bell-atlantic-v-twombly.html (last visited Feb. 28. 2010). More amicus briefs appear on Westlaw, including Brief of Amici Curiae Legal Scholars Debra Lyn Bassett, et al. and of Certain Purchasers of Elevators and Elevator Maintenance Services, Including Transhorn Ltd., et al. in Support of Respondents, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (No. 05.1126), 2006 WL 2966600 (including Kevin M.Clermont as a signatory).
140. See generally Kevin M. Clermont & Theodore Eisenberg, Litigation Realites 88 CORNELL L. REV. 119 (2002) (surveying empirical knowledge of civil procedure)
141. Clermont, Litigation Realities Redux supra note 41 (updating data in 2009).
142. Assuming one could assemble such a sample, one might define "success rate" as the percentage of claims found to be well-founded, as evidenced either by ajudgment on the merits or by a settlement sufficiently close to initial demands to serve as a reliable proxy for such a judgment. But we recognize that accounting for the case-selection effect, which concerns cases never brought, would be a huge problem. One model is the fine study of the effect of heightening pleading standards done by Stephen J. Choi, Karen K. Nelson, and A.C. Pritchard.
143. See Stephen J. Choi et al., The Screening Effect of the Private Securities Litigation Reform Act 6 J. EMPIRICAL LEGAL STUD. 35, 64-65 (2009) ("[M]any suits that would have been deemed nonnuisance prior to the PSLRA likely would not be filed after Congress adopted the PSLRA."). Another feasible approach would be to study different state pleading regimes comparatively, tlying to get a feel for the costs of false positives and false negatives.
144. For an example, see Memorandum from Joe Cecil & George Cort, Fed.Judicial Ctr., to Judge Michael Baylson (Nov. 2, 2007), available at http://www.fjc.gov/public/pdf nsf/lookup/insumjre.pdf/$file/insumjre.pdf (reporting research on summary judgment). The Federal Judicial Center is now collecting data on motions to dismiss.
145. See Judicial Conference Comm. on Rules of Practice & Procedure, Minutes 40 (Jan. 14-15, 2008), available at http://www.uscourts. gov/rules/Minutes/STO1.2008.min.pdf (mentioning plans to collect data at a panel discussion on pleading).
146. See, e.g., PAUlA L HANNAFORD-AGOR, VALERIE P. HANS, NICOLE L MOTT & G. THOMAS MUNSTERMAN, NAT'L CTR. FOR STATE COURTS, ARE HUNG JURIES A PROBLEM? 13-14 (2002), available at http://contentdrn.ncsconhine.org/cgi-bin/showfile. exe?CISOROOT=/juries& CISOPTR=27 (considering the desirability of nonunanimous verdicts to address the problem of hung juries in criminal cases)
147. JAMES S. KAXAUK , DEBORAH R. HENSLER, DANIEL MCCAFFRE.Y, MARIAN OSHIRO, NICHOLAS. M. PACE & MARY E. VA1ANA, RAND INST. FOR CIVIL JUSTICE, DISCOVERY MANAGEMENT: FURTHER ANALYSIS OF THE CIVIL JUSTICE REFORM ACT EVALUATION DATA, at xxvii (1998), available at http://www.rand.org/pubs/monograph.reports/2009/ MR941.pdf ('Discovery is not a pervasive litigation cost problem for the majority of cases.").
148. See Michael Chiorazzi et al., Empirical Studies in Civil Procedure: A Selected Annotated Bibliography, LAW & CONTEMP. PROBS., Summer 1988, at 87, 120 ("[T]here no studies on pleading per se, perhaps because of the advent of modem notice pleading.")
149. Civil Rules Advisory Comm., Minutes 37-38 (May 22-23, 2006), available at http://www.uscourts.gov/rules/Minutes/CVO5-2006-min.pdf (discussing possible amendment to FED. P. CIV. P. 8 and noting the lack of data); Civil Rules Advisory Comm., Minutes 29-35 (Oct. 27-28, 2005), available at http://www.uscourts.gov/rules/Minutes/CV1 1-2005-min.pdf (same).
150. E.g., Hazard, supra note 6, at 1671-72 (noting the potential problems associated with notice pleading); Sherwin, supra note 6, at 318-20 (same)
151. See FED. R. CIV. P. 11 (requiring that every paper, and thus every claim, be signed to certify that, to the best of the signer's "knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," it has factual support).
152. As things have worked out, the new toughness under Twombly-Iqbal does not mesh easily with the relative leniency under FED. R. CIV. P. 11(b) (3) (providing that the signature warrants that "the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery"). On the one hand, a Twombly-Iqbal dismissal should not necessarily imply a Rule 11 violation for lack of evidentiary support. On the other hand, a plaintiff with very little knowledge of the facts apparently could use such specifically identified allegations to circumvent Twombly-Iqbal initially, but would then likely fall to a Rule 11 motion.
153. See Posting of Tobias B. Wolff, Professor, University of Pennsylvania Law School, twolff@law.upenn.edu, to civ-pro@listserve nd edu (June 7, 2009) (on file with the Iowa Law Review) (discussing the interaction of Rules 8(a) (2) and 11(b) (3)).
154. See infra note 124 (discussing reform aimed at discoveiy costs).
155. FED. R. CIV. P. 26(f) (3) (B); see id. 26(d) (prohibiting earlier discovery)
156. see also id. 26(c) (involving protective orders).
157. The other Justices seemed just as confused, judging from their decision to overturn the pleading dismissal in Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam), just two weeks after Twombly. In that case, the prose plaintiff brought a civil-rights claim against prison officials for their wrongful termination of his medical treatment for hepatitis C, alleging that this action endangered his life. Erickson, 551 U.S. at 89-90. The Tenth Circuit affirmed the dismissal, on the ground that the plaintiff had pleaded the substantial-harm element in a "conclusory" fashion. Id. at 93. The Supreme Court vacated the ruling for having departed "in so stark a manner from the pleading standard mandated by the Federal Rules of Civil Procedure." Id. at 90. It cited Twombly for the propositions that notice pleading does not require allegations of 'specific facts" and that the "judge must accept as true all of the factual allegations contained in the complaint," but it did not reach and made no reference to any plausibility test. Id. at 93-94. Although later the lower court could effectively find the ultimate inference of liability to be plausible, given that the allegations had survived the nonconclusoriness hurdle, Erickson v. Pardus, 238 F. App'x 335 (10th Cir. 2007), the Supreme Court hardiy seemed on top of its new test. The Court's summary action was per curiam, with Justices Scalia and Thomas dissenting on other grounds. Erickson, 551 U.S. at 95.
158. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1959 (2009) (Souter,J., dissenting).
159. See Supreme Court of the United States, The Justices of the Supreme Court, http://www.supremecourtus.gov/about/biographiescurrent.pdf (last visited Feb. 28, 2010) (providing biographical sketches)
160. Oakley & Coon. supra note 40. at 1409 (describing New Hampshire's procedural system as "idiosyncratic")
161. see also Adam Liptak, Roberts Sets Off Debate on Judicial Experience, N.Y. TIMES. Feb. 17, 2009, at A14, available at http://www.nytimes.com/2009/02/ 17/us/l7bar.html ("Chief Justice Roberts did say that the current justices' limited trial court experience was 'an unfortunate circumstance' and 'a flaw.'")
162. The White House, Judge Sofia Sotomayor, http://www.forbes.com/2009/05/26/ sonia-sotomayor-judge-business-washington-supreme-court-background.html (last visited Feb. 28, 2010) (stating that Judge Sotomayor replacesJustice Souter as the onlyjustice with experience as a trial judge). Whatever litigation experience any other Justice had in practice was scanty and long ago.
163. See Luther T. Munford, Recent Litigating Counts, NAT'L U., Feb. 16, 2004, at 43, 43 (suggesting "the creation of a 'litigator's seat'").
164. Justice Breyer in the Iqbal argument expressed further puzzlement about the possibility of limiting discovery as an alternative to testing the pleading. Transcript of Oral Argument, supra note 78, at 17 ( want to know where the judge has the power to control discovery in the rules. That's-I should know that. I can't remember my civil procedure course. Probably, it was taught on day 4."). Although Solicitor General Garre immediately pointed him to FED. R CIV. P. 26, Justice Breyer did not grasp the response until much later. Id. at 34 ("I have the number of the rule I want. Maybe I am not understanding it. But Rule 26, I think, (e) (2) [ says-says, among other things, that the judge can change the number of depositions you get"); cf id. at 13-14 ("I thought Rule 8 was move for a more definite statement."). Justice Ginsburg also pointed out to Justice Breyer that a competent trial judge, backed by the sanctions of Rule 11, should be able to prevent abuse of the discovery system. Id. at 19-20. Eventually, Justice Breyer wrote a separate dissent touting the district court's limiting of discovery as an alternative means to protect defendants. Iqba4 129 S. Ct. at 1961 (Breyer, J., dissenting). But cf Clinton v. Jones, 520 U.S. 681, 723-24 (1997) (Breyer, J., concurring in judgment) (expressing doubt in the district court's case-management ability to protect the defendant). Unfortunately, such a posture enflamed Justice Scalia, who expressed outrage that important people's time was at the mercy of a federal district judge. Transcript of Oral Argument, supra note 78, at 35 ("Well, I mean, that's lovely: That the ability of the Attorney General and the Director of the FBI to-to do their jobs without having to litigate personal liability is dependent upon the discretionary decision of a single district judge."). We pass quietly over the question of whether that is exactly what the rule of law is about: that power should sometimes have to stand to answer even when inconvenient.
165. See supra text accompanying notes 45-49, 77-87 (trying further to define "plausibility").
166. Twombly v. Bell Ad. Corp. (Twombly 1), 425 F.3d 99, 111 & n.5 (2d Cir. 2005) (citing, inter alia, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)), vacating 313 F. Supp. 2d 174 (S.D.N.Y. 2003)
167. see Transcript of Oral Argument at 19-20, 35, 48, Bell Ad. Corp. v. Twombly, 550 U.S. 544 (2007) (No. 05-1126), 2006 WL 3422211 (showing Justice Souter latching onto the term p1ausible," despite the resistance of counsel).
168. Twombly I.425 F.3d at 111.
169. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1959 (2009) (Souter,J., dissenting).
170. See Theodore Eisenberg & StewartJ. Schwab, What Shapes Perceptions of the Federal Court System?. 56 U. CHI. L. REV. 501, 530-34 (1989) (discussing the impact of vantage point on perception)
171. Marc Galanter, An Oil Strike in HeW Contemporaty Legends About the Civil Justice System, 40 Aiuz. L. REv. 717, 741 (1998) (discussing the impact of anecdote on perception).
172. See generally Stephen B. Burbank, Pleading and theDilemmas of Modern American Procedure, 93JUDICATURE 109, 116-19 (2009) (arguing that a case decision was institutionally the only way to change the status quo in pursuit of the Court's vision for solving the problems of contemporary litigation).
173. See, e.g., JOINT PROJECT OF THE AM. COLL OF TRIAL LAWYERS TASK FORCE ON DISCOVERY & THE INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., FINAL REPORT 5-6 (2009) (supporting a return to code-style fact pleading);
174. Richard A. Epstein, Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments, 25 WASH. U.J.L. & POL'Y 61, 99 (2007) (approving the result of Twombly by supporting "dismissal at the close of pleadings in any case where the defendant has negated all inferences of culpability by using the same kinds of public evidence that the plaintiff has used to establish a factual underpinning to the underlying complaint");
175. Emily Sherwin, The Jurisprudence of Pleading: Rights, Rules, and Conley V. Gibson, 52 How. L.J. 73, 93-98 (2008) (criticizing lenient pleading rules);
176. Douglas G. Smith, The Evolution of a New Pleading Standard: Ashcroft v. Iqbal 2, 18-19 (Aug. 28, 2009) (unpublished manuscript), available at http://ssrn.com/abstract=1463844 (approving Iqbal as an evolution in the pleading standard that is likely to increase the efficiency and fairness of civil practice).
177. This position is probably the majority view among academics. A fine statement of the position lies in A. Benjamin Spencer, Plausibility Pleading; 49 B.C. L. REV. 431, 460-89 (2008) (strongly criticizing the new regime of pleading);
178. see also A. Benjamin Spencer, Understanding Pleading Doctrine; 108 MICH. L REV. 1, 13-18 (2009) (arguing that pleading today centrally requires a complaint to describe events about which there is a presumption of impropriety).
179. See e.g., Posting of Gregory Sisk, gcsisk@suhomas.edu, to civ-pro@listserv.nd.edu (June 6, 2009) (on file with the Iowa Law Review) (proposing such a reform); cf Stephen B. Burbank, Pleading and the Dilemmas of"General Rules," 2009 WIS. L. REV. 535, 537 (arguing that substantive-specific federal common law could modify the transsubstantive Federal Rules on pleading);
180. Edward D. Cavanagh, Twombly, The Federal Rules of Civil Procedure and the Courts, 82 ST.JOHN'S L. REV. 877, 879 (2008) (concluding that "certain classes of cases may well warrant particularized pleading but that the decision should be made by the rulemakers through amendments to the Federal Rules of Civil Procedure and not by judges on an ad hoc basis");
181. Paul Stancil, Balancing the Pleading Equation, 61 BAYLOR L. REV. 90, 147 (2009) (calling for a return to fact pleading, but for only certain "high-risk" classes of cases).
182. FED. R. CIV P. 9(b).
183. For several decades, there has been a persistent contention that civil-rights claims, especially where the defendants asserted their immunity, would be good candidates for such inclusion. See Christopher M. Fairman. Heightened Pleading, 81 TEX. L. REV. 551, 574-82 (2002) (criticizing lower-court civil-rights cases that required heightened pleading);
184. Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 1027-32 (2003) (commenting on the heavy burden that heightened pleading places on plaintiffs);
185. Marcus, supra note 12, at 1751 (describing cases raising the pleading standard);
186. Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure 86 COLUM. L REV. 433, 444-51 (1986) (discussing the reaction to liberal notice pleading, resulting in heightened pleading for certain, enumerated types of cases). The Court has regularly pushed aside such arguments with the point that, if true, the right path was to propose a change in the Federal Rules. See Swierkiewicz v. Sorema NA, 534 U.S. 506, 513-15 (2002) (involving a Title VII employment-discrimination claim); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (involving a civil-rights claim against a municipality). We are skeptical that such a Rule change is a good idea. However, if adopting different pleading rules is a good idea, the earlier Court was correct in its opinion that a Rule change accomplished through established rulemaking procedures, not a judicial opinion, is the proper way to go. See Jones v. Bock, 549 U.S. 199, 224 (2007) ("We once again reiterate ⋯ that adopting different and more onerous pleading rules to deal with particular categories of cases should be done through established rulemaking procedures, and not on a case-by.case basis by the courts.").
187. See, e.g., Stradford v. Zurich Ins. Co., No. 02 CIV. 3628, 2002 WL 31027517, at *2 (S.D.N.Y. Sept. 10, 2002). The Stradford court stated: Thus, it is unclear from the face of the [fraud] counterclaims whether defendants assert that Dr. Stradford's claimed losses are improperly inflated, that Dr. Stradford's office never even flooded, or that the offices flooded, but not during the term of the Policy. In essence, defendants claim that Dr. Stradford lied, but fail to identify the lie.
188. Id. at *3.
189. see also CLARK, supra note 11, at 225-40 (treating heightened pleading under the code regimes);
190. 5A WRIGHT & MILLER, supra note 9, § 1296-1301.1 (treating heightened pleading under the federal regime)
191. See supra text accompanying note 49 (discussing the lack of precedent for testing convincingness on bare pleadings).
192. See Lonny S. Hoffman, Burn up the Chaff with Unquenchable Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power over Pleadings, 88 RU. L. REV. 1217, 1255-70 (2008) (criticizing Twombly from a broad perspective, but ultimately approving a limited screening of conclusory pleadings unless the pleader can show a special need for discovery);
193. Randal C. Picker. Twombly, Leegin and the Reshaping of Antitrust, 2007 SUP. CT. REV. 161, 176-77 (suggesting that the Supreme Court should have proceeded instead by limiting discovery); Posting of Eric Freedman, Professor, Hofstra Law School, lawemf@hofstra.edu, to civ pro@listserv.nd.edu (Sept. 4, 2009) (on file with the Iowa Law Review) (suggesting disallowance of dismissals on the ground that a pleading is conclusory or implausible, "unless the court also determines that it is clear to a legal certainty that the factual contentions could not have evidentiary support after a reasonable opportunity for further investigation or discovery").
194. For a very sensible warning against trying to cure pleading without also considering discovery and case management, see generally Robert L. Rothman, Twombly and Iqbal: A License to Dismiss, LITIGATION, Spring 2009, at 1, available at http://www.abanet.org/litigation/journal/opening-statements/ 09spring.pdf.
195. See, e.g., Posting of Bryan Camp, Professor, Texas Tech University School of Law, biyan.camp@ttu.edu, to civ-pro@listserv.nd.edu (July 7, 2009) (on file with the Iowa Law Review) (suggesting a criminal.law analogy). For an article treating civil-criminal comparisons more generally, see generally David A. Sklansky & Stephen C. Yeazell, Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa, 94 GEO. L.J. 683 (2006).
196. See 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE 5-7 (2004) (discussing search warrants).
197. See id. at 446-51 (discussing warrantless searches); see also 3 id. chs. 5-7 (discussing warrantless searches in greater depth).
198. Indeed, many foreign observers, accustomed to the Continental system of investigative processes supervised by judges, find distressing the power put into the hands of U.S. civil litigants. See generally Stephen N. Subrin, Discoveiy in Global Perspective: Are We Nuts?, 52 DEPAUL L. REV. 299 (2002) (comparing discovery practices).
199. Alternatively, one could build the procedure onto the existing framework for discovery, so that FED. R. CIV. P. 26(a) (1) would require each party to disclose all evidence supporting its claim or defense early in the case. One could come at this solution from the opposite direction, that is, one could abrogate Twombly-Iqbal as a pleading test but give the defendant a means to cut out discovery in weak cases. For example, one could allow the defendant to make an early summary-judgment motion that would require the plaintiff either to show reasonable possibility, or plausibility, of the claim or to show under FED. R. CIV P. 56(f) a reasonable possibility that discovery would yield significant pertinent evidence. Indeed, this route does not require much change in existing procedural law.
200. Denial of the discovery warrant would completely block the plaintiff who does not yet have the necessary information that discovery could deliver, while denying a search warrant is just one closed door along the corridor of criminal procedure. Arguably, then, a better standard would be the 'reasonable suspicion" from stop-and-frisk law, rather than the "substantial possibility" (or perhaps more) associated with criminal law's probable cause. See Clermont, supra note 47, at 1124 (specifying criminal standards of decision). Alternatively, one could more vaguely require a showing of "good cause," a term that at least sounds more civil than criminal. The discovery Rules have made liberal use of that term from the beginning, as in FED. R. Civ. P. 35.
201. See Keith N. Hylton, When Should a Case Be Dismissed? The Economics of Pleading and Summary Judgment Standards, 16 SUP. CT. ECON. REV. 39, 42-54 (2008) (using economic analysis to conclude that pleading standards should vary with the case's evidentiary demands and the social costs of litigation).
202. See, e.g., Posting of Jonathan Siegel, Professor, George Washington University Law School, jsiegel@law.gwu.edu, to civ-pro@listserv.nd.edu (May 19, 2009) (on file with the Iowa Law Review) (proposing such a reform);
203. see also FED. R. CIV. P. 84 (providing that "forms in the Appendix suffice under these rules");
204. 12 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3162 (2d ed. 1997) ("Thus, it is clear that a pleading, motion, or other paper that follows one of the Official Forms cannot be successfully attacked."). The Civil Rules Advisory Committee has the monitoring of Twombly and Iqbal on its current agenda. See Mauro, supra note 28. at 32 (describing the current posture of the Advisory Committee);
205. see also Civil Rules Advisory Comm., Minutes 31-35 (Nov. 8-9, 2007), available at http://www.uscourts.gov/rules/Minutes/CV1 1-2007-min.pdf (expressing cautious interest); Civil Rules Advisory Comm., Minutes 35 (Apr. 7-8, 2008), available at http://www.uscourts.gov/rules/Minutes/CVO4-2008.min.pdf (postponing the discussion); Civil Rules Advisory Comm., Minutes 17 (Nov. 17-18, 2008), available at http://www.uscourts.gov/rules/Minutes/CV11-2008.min. pdf (same)
206. See, e.g., Posting of David Shapiro, Professor, Harvard Law School, dshapiro@law.harvard.edu, to civ-pro@listserv.nd.edu (July 7, 2009) (on file with the Iowa Law Review) (offering an amendment that Congress could make to FED. R. Civ. P. 8). Professor Shapiro proposed: Except as otherwise expressly provided by statute or in these rules, an allegation of fact, or of the application of law to fact, shall [must?] not be held insufficient on the grounds that it is conclusory and/or implausible, unless the rules governing judicial notice require a determination that the allegation is not credible.
207. Id. In fact, on July 22, 2009, Senator Arlen Specter introduced a bill to restore the status quo ante, pending further study. S. 1504, 111th Cong. (2009). It could, of course, undergo revision after committee hearings, but it currently provides: Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).
208. Id. In a congressional hearing on December 2, 2009, Professor Stephen Burbank suggested redrafting the bill so that federal pleading would simply revert to the "interpretations.., that existed on May 20, 2007," which was the day before the Twombly decision. Whether the Supreme Court Has Limited Americans' Access to Court: Hearing Btfore the S. Comm. on the Judiciary, 111th Cong. app. A, at 22 (2009) (prepared statement of Stephen B. Burbank, Professor, University of Pennsylvania Law School), available at http://judiciary.senate. gov/pdf/12-02-09%2oBurbank% 2oTestimony.pdf
209. However, Michael C. Dorf, Should Congress Change the Standard for Dismissing a Federal Lawsuit?, FINDLAW, July 29, 2009, http://writ.news.findlaw. com/dorf/20090729.html, sharply criticized the bill's approach. He proposed this version instead: Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not deem a pleading inadequate under rule 8(a) (2) or rule 8(b) (1) (A) of the Federal Rules of Civil Procedure, on the ground that such pleading is conclusory or implausible, unless the court may take judicial notice of the implausibility of a factual allegation. So long as the pleaded claim or defense provides fair notice of the nature of the claim or defense, and the allegations, if taken to be true, would support a legally sufficient claim or defense, a pleading satisfies the requirements of rule 8.
210. Dorf on Law, An Alternative to Senator Specter's Notice Pleading Bill, http://www.dorfonlaw. org/2009/07/alternative-to-senator-specters-notice-28.html (July 29, 2009, 3:13 EDT)
211. see also Posting of Arthur Wolf awolf@law.wnec.edu, to civ-pro @listserv.nd.edu (Oct. 20, 2009) (on file with the Iowa Law Review) (proposing an amendment of Rule 8(a) (2) to read either "a short and plain statement giving [sufficient] notice of the claim upon which relief can be granted" or "a short and plain statement of the claim upon which relief can be granted so that a party can [may] reasonably prepare a response"). On November 19, 2009, RepresentativeJerrold Nadler introduced another bill to similar effect. H.R. 4115, 111th Cong. (2009). It would add a new 28 U.S.C. § 2078 providing: A court shall not dismiss a complaint under subdivision (b) (6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or ainsufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged. HR. 4115
212. The most recent-though unfortunate-example is the congressional addition to FED. R. Civ. P. 35. At one point, the Rule provided that only a physician could conduct a mental examination, thus excluding clinical psychologists. See Glenn S. Koppel, Populism, Politics, and Procedure: The Saga of Summary Judgment and the Rulemaking Process in California 24 PEPP. L. REV. 455, 481 (1997) (describing the sequence of events by which Congress amended the Federal Rules without any public notice). A senator, whose daughter happened to be a licensed clinical psychologist, successfully sponsored legislation amending the Rule to include her specialty. Id.