Illiberal construction of pro SE pleadings

University of Pennsylvania Law Review

Volumn 159, Issue 2, 2011, Pages 585-633

  Schneider, Rory K ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 79751482768     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (369)

1. See, e.g., Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008) ("Few issues .. . are more significant than pleading standards, which are the key that opens access to courts.") ;
2. Drew A. Swank, In Defense of Rules and Roles: The Need to Curb Extreme Forms of Pro Se Assistance and Accommodation in Litigation, 54 AM. U. L. REV. 1537, 1546 (2005) (noting that "[o]pen access to the courts for all citizens" is one of the principles upon which the right to prosecute one's own case is founded).
3. See Swank, supra note 1, at 1546 (discussing the importance of self-representation to the fundamental precept of equality before the law).
4. See Proceedings of the Institute on Federal Rules (1938) (statement of Edgar Tolman), reprinted in RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS OF THE UNITED STATES 301-13 (William W. Dawson ed., 1938).
5. See Mark Herrmann, James M. Beck & Stephen B. Burbank, Debate, Plausible Denial: Should Congress Overrule Twombly and Iqbal ? 158 U. PA. L. REV. PENNUMBRA 141, 148 (2009), http://pennumbra.com/debates/pdfs/ PlausibleDenial.pdf (Burbank, Rebuttal) (asserting that the drafters of the Federal Rules objected to a technical pleading regime because it would "too often cut [] off adjudication on the merits").
6. Cf. Charles E. Clark, The New Federal Rules of Civil Procedure: The Last PhaseUnderlying Philosophy Embodied in Some of the Basic Provisions of the New Procedure, 23 A.B.A. J. 976, 976-77 (1937) (commenting that liberal pleading rules were necessary to mitigate information asymmetries between plaintiffs and defendants that often led to premature dismissal of suits). Notably, in no suits are such information asymmetries more apparent than those in which pro se litigants sue represented adversaries. These types of suits comprise the vast majority in which pro se litigants appear.
7. Cf. Jonathan D. Rosenbloom, Exploring Methods to Improve Management and Fairness in Pro Se Cases: A Study of the Pro Se Docket in the Southern District of New York, 30 FORDHAM URB. L.J. 305, 323 (showing that the majority of pro se cases involve unrepresented plaintiffs who sue governmental defendants).
8. FED. R. CIV. P. 8(a).
9. See Robert Bacharach & Lyn Entzeroth, Judicial Advocacy in Pro Se Litigation: A Return to Neutrality, 42 IND. L. REV. 19, 22-26 (2009) (noting that courts created ways to ensure that meritorious pro se suits would not be dismissed simply because the litigants lacked legal knowledge and experience, one of which was liberal construction).
10. Estelle v. Gamble, 429 U.S. 97, 106 (1976)
11. (quoting Haines v. Kerner, 404 U.S. 519,520-21 (1972) (per curiam)).
12. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957) ("[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."),
13. alnogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-63 (2007). This standard epitomized the notice-pleading regime envisioned by the drafters of the Federal Rules, who emphasized discovery as the stage at which a claim's true merit would come to light, rather than pleading.
14. See Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 990 (2003) ("With merits determination as the goal, the Federal Rules create a new procedural system that massively deemphasizes the role of pleadings.").
15. See Bacharach & Entzeroth, supra note 7, at 29-30 (asserting that because the Supreme Court never defined the "degree of relaxation" afforded pro se pleadings in comparison to the liberal notice pleading standard applicable to all litigants, lower courts adopted different iterations of the rule).
16. 550 U.S. 544 (2007).
17. 129 S. Ct. 1937(2009).
18. See generally Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433, 435-37 (1986) (explaining how the reemergence of fact pleading resulted from lower courts' refusals to accept conclusory allegations as sufficient under the Federal Rules in particular categories of suits).
19. See Twombly, 550 U.S. at 570 (requiring a complaint to allege "enough facts to state a claim to relief that is plausible on its face").
20. See Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM. U. L. REV. 553, 615 (2010) (observing a substantially greater increase in the rate of dismissal of pro se suits than represented suits post-Iqbal).
21. See Iqbal, 129 S. Ct. at 1951 ("[T] he allegations are conclusory and not entitled to be assumed true.");
22. Hatamyar, supra note 15, at 579 ("Iqbal invites judges to . .. eliminate from consideration all the complaint's conclusory allegations ...."). The parsing of a complaint into conclusory and nonconclusory factual allegations disregards the Federal Rules' express disavowal of fact pleading, along with their requirement that all facts be presumed true when determining the adequacy of a complaint.
23. See, e.g., Stephen B. Burbank, Pleading and the Dilemmas of Modern American Procedure, 93 JUDICATURE 109,115 (2009) (noting that the drafters of the Federal Rules rejected fact pleading because of the impossibility of distinguishing between conclusions and facts); Hatamyar, supra note 15, at 563 (discussing courts' obligations to credit as true all factual allegations in a complaint).
24. See Iqbal, 129 S. Ct. at 1950 ("When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.").
25. Cf Burbank, supra note 16, at 118 (suggesting that reliance on "judicial experience and common sense,"
26. Iqbal, 129 S. Ct. at 1950, invites "cognitive illiberalism," a phenomenon that negatively affects classes of disfavored litigants).
27. See Hatamyar, supra note 15, at 615 (noting that, under Conley, courts dismissed sixty-seven percent of pro se cases).
28. See Nina Ingwer VanWormer, Help at Your Fingertips: A Twenty-First Century Response to the Pro Se Phenomenon, 60 VAND. L. REV. 983, 987 (2007) (tracing the right to represent oneself in federal court to medieval England, and to the Magna Carta in particular).
29. Faretta v. California, 422 U.S. 806, 830 n.39 (1975).
30. See Drew A. Swank, The Pro Se Phenomenon, 19 BYU J. PUB. L. 373, 374-75 (2005) (noting that the "American legal ideal is that both the wealthy and the pauper could have access to the courts and could be treated equally with the resulting decisions being as fair as possible").
31. See id. at 375 ("The development of pro se rights in the United States has been tied to the rights of indigents to have access to the courts.").
32. See, e.g., Faretta, 422 U.S. at 826-27 (discussing American colonists' fervent distrust of lawyers as responsible for their insistence on maintaining the right to proceed pro se) ;
33. Jona Goldschmidt, Cases and Materials on Pro Se Litigation and Related Issues, THE PRO SE LAW CENTER (May 1-4, 1997), http://www.pro-selaw.org/cases. asp (providing references to research pertaining to the anti-lawyer sentiment from which the right to self-representation emerged).
34. See Faretta, 422 U.S. at 819 ("The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. .. . [T]he right to self-representation ... is thus necessarily implied by the structure of the Amendment."). So firm are the historical roots from which the right to defend oneself from criminal prosecution arose that in sixteenthand seventeenth-century England, felony defendants were actually required, not just entitled, to proceed without a lawyer, despite the earlier recognition of a right to counsel in misdemeanor prosecutions and civil cases.
35. See id. at 823 ("By common law of that time, it was not representation by counsel but self-representation that was the practice . . . ."). The tradition carried over into colonial America as well: "[E] ven where counsel was permitted, the general practice continued to be self-representation [in criminal cases]."
36. Id. at 828.
37. See Swank, supra note 1, at 1547 ("Whatever right there is to proceed pro se in criminal cases . . . has not been extended by the Supreme Court to civil cases.");
38. VanWormer, supra note 20, at 986-87 (noting that, although criminal defendants' right to refuse counsel is protected by the Sixth Amendment of the Constitution, the guarantee "does not extend to civil litigants"). Nonetheless, considerable debate has focused upon whether there is a constitutional right to self-representation in civil cases, despite its nonrecognition thus far by the Supreme Court.
39. See, e.g., Lois Bloom & Helen Hershkoff, Federal Courts, Magistrate Judges, and the Pro Se Plaintiff, 16 NOTRE DAME J.L. ETHICS & PUB. POL'Y 475, 484-85 (2002) (suggesting that the right to self-representation is constitutionally guaranteed);
40. Candice K. Lee, Note, Access Denied: Limitations on Pro Se Litigants'Access to Courts in the Eighth Circuit, 36 U.C. DAVIS L. REV. 1261, 1265 (2003) (commenting that courts have split on whether civil litigants have a constitutional right to proceed self-represented). Some states, though, have definitively afforded constitutional protection to civil litigants' right to self-representation.
41. See, e.g., GA. CONST, art. I, § 1, para. XII ("No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state.");
42. MICH. CONST, art. I, §13 ("A suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney.").
43. Judiciary Act of 1789, ch. 20, §35,1 Stat. 73,92 (emphasis added).
44. See 28 U.S.C. §1654 (2006) ("In all courts of the United States the parties may plead and conduct their own cases personally or by counsel....").
45. See Stephan Landsman, The Growing Challenge of Pro Se Litigation, 13 LEWIS & CLARK L. REV. 439, 440-41 (2009) (describing the "inexorably rising tide of pro se litigation" in American courts); .
46. see also VanWormer, supra note 20, at 988-91 (presenting data on the recent rise of pro se litigation in both state and federal courts).
47. See Landsman, supra note 29, at 442 (asserting that, aside from civil rights claims, common claims pursued pro se also involved contract, labor, social security, and tort law).
48. Swank, supra note 22, at 377
49. (citing Tiffany Buxton, Foreign Solutions to the U.S. Pro Se Phenomenon, 34 CASE W. RES. J. INT'L L. 103,112 (2002)).
50. See JAMES C. DUFF, ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2008 ANNUAL REPORT OF THE DIRECTOR 78 tbl.S-23 (2008) (reporting that 70,948 pro se cases were heard in district courts in the twelve months preceding September 30, 2008, compared to 196,309 non-pro se cases).
51. Id.
52. In fact, two relatively recent statutory developments, the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended in scattered sections of 11, 18, 28, and 42 U.S.C), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 18, 22, 28 and 42 U.S.C), have severely limited prisoners' ability to institute abusive litigation. The PLRA, for example, requires prisoners to exhaust administrative remedies before filing civil actions and pay court filing fees in full, thereby reducing the portion of the pro se docket consisting of prisoner complaints.
53. See 28 U.S.C. §1915(b)(1) (2006) (imposing full filing fees on prisoner litigants); 42 U.S.C. §1997e(a) (2006) (codifying an administrative exhaustion requirement);
54. Rosenbloom, supra note 5, at 322 (concluding that the sharp decrease in "[t]he number of inmate-filed cases ... following the enactment of the PLRA" demonstrates the enactment's profound effect on pro se litigation). Even more strictly, AEDPA forbids prisoners from reinstituting previously adjudicated habeas claims. 28 U.S.C. §2244(b) (1). It also prohibits successive habeas petitions containing claims not previously adjudicated absent approval from the relevant court of appeals and either (1) a basis in a new constitutional rule made retroactive on collateral review by the Supreme Court or (2) a showing that the factual predicate for the claim both could not have been developed previously and provides clear and convincing evidence that a reasonable factfinder would not have found the defendant guilty. 28 U.S.C. § 2244(b) (2)-(3). Despite these influential developments in prisoner litigation, the pro se docket continues to grow.
55. VanWormer, supra note 20, at 989.
56. See DUFF, supra note 32, at 45 tbl.S-4 (indicating an 8.2 percent increase from 2007 to 2008 in civil pro se appeals).
57. See id. (showing that of the 31,454 total civil appeals in 2008, 4595 involved nonprisoners acting pro se).
58. This is not to deny that a lack of legal expertise often leads litigants to believe they have claims when they, in fact, do not. It does, however, suggest that perhaps the number of unmeritorious pro se filings is not as high as many assert, and perhaps not high enough to explain the grossly disproportionate rate at which they are dismissed. Indeed, the high rate of dismissal of pro se cases cuts against the certainty that pro se claims lack merit because, without any discovery, it is difficult to discern the likelihood that a claim would have been successful-precisely the reason that drafters of the Federal Rules instituted a weak pleading regime in the first place.
59. VanWormer, supra note 20, at 991.
60. See, e.g., Merritt v. Faulkner, 823 F.2d 1150, 1155 (7th Cir. 1987) (per curiam) (Posner, J., concurring) (arguing against the appointment of counsel in a pro se suit for damages because the self-represented litigant could have hired an attorney on a contingent-fee basis, and concluding from his failure to do so that the claim lacked merit). For a fuller critique of this argument,
61. see generally Robin Paul Malloy, Framing the Market: Representations of Meaning and Value in Law, Markets, and Culture, 51 BUFF. L. REV. 1 (2003).
62. Colleen McMahon, The Law of Unintended Consequences: Shockwaves in the Lower Courts After Bell Atlantic Corp. v. Twombly, 41 SUFFOLKU. L. REV. 851, 867 (2008).
63. See, e.g., Swank, supra note 22, at 378 ("[C]ommon belief is that all pro se civil litigants want counsel to represent them and that no person would choose to be pro se." (internal quotation marks omitted) (footnotes omitted)). The assumption that anyone intending to prosecute a claim desires counsel reflects, in a more refined manner, the saying that "one who is his own lawyer has a fool for a client."
64. Faretta v. California, 422 U.S. 806, 852 (1975) (Blackmun, J., dissenting). Yet the myriad reasons why individuals choose to proceed pro se in civil suits show that they may not be foolish for doing so and certainly cannot be blamed for the decision, as it often results from their insolvency.
65. See VanWormer, supra note 20, at 991-92 (rejecting the joke as inaccurate in light of why individuals represent themselves). Indeed, even in the criminal contextwhere the stakes are higher-the saying's accuracy has been called into question by a study that demonstrates that, in fact, "pro se felony defendants in state courts are convicted at rates equivalent to or lower than the conviction rates of represented felony defendants."
66. Erica J. Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C. L. REV. 423, 423 (2007).
67. See Paul D. Healey, In Search of the Delicate Balance: Legal and Ethical Questions in Assisting the Fro Se Patron, 90 LAW LIBR. J. 129, 133 (1998) ("Ultimately, the predominant reason for self-representation may be simple economics.");
68. Swank, supra note 22, at 378 (asserting that a majority of the public attributes the increase in pro se appearances to the high cost of attorneys).
69. See Rosenbloom, .supra note 5, at 321, 326-27 (asserting that civil rights cases are most frequently pursued pro se and that approximately thirty percent of examined pro se cases sought a form of equitable relief). Although attorneys' fees would presumably be available if these types of suits are "successful," the Supreme Court has limited the ability of civil rights attorneys to receive attorneys' fees under 42 U.S.C. §1988.
70. See, e.g., Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 598 (2001) (holding that attorneys cannot collect fees under the "catalyst theory," in which defendants voluntarily change their conduct in the way requested by plaintiffs);
71. .see also generally 42 U.S.C. §1988 (2006). As a result, attorneys are nevertheless discouraged from pursuing such suits.
72. See Catherine R. Albiston & Laura Beth Nielsen, The Procedural Attack on Civil Rights: The Empirical Reality o/Buckhannon for the Private Attorney General, 54 UCLA L. REV. 1087, 1089-92 (2007) (arguing that the Court's holding in Buckhannon discourages civil rights claims).
73. See Lee, supra note 26, at 1280-81 (doubting the market's capacity to provide representation when the expected profit is too insignificant to attract counsel);
74. Swank, supra note 22, at 380 (noting that where little or no profit motive exists, as where a potential client is a defendant or has an unprofitable case, the market will not provide representation). In addition to not fully accounting for lawyers' calculus in accepting cases, the contingent-fee structure may cause parties to forego representation because the substantial portion of an award that goes to the attorney may prevent even successful plaintiffs from being made whole. If a party feels confident in the strength of her suit, then, she may choose to proceed without counsel in order to be more fully compensated for the injuries suffered.
75. See PATRICIA A. GARCIA, LITIGANTS WITHOUT LAWYERS: COURTS AND LAWYERS MEETING THE CHALLENGES OF SELF-REPRESENTATION 8 (2002) (asserting that some litigants "point to problems finding a lawyer" as a reason why they did not obtain counsel);
76. Frances H. Thompson, Access to Justice in Idaho, 29 FORDHAM URB. L.J. 1313, 1315 (2002) (asserting that in certain rural locations, even if an individual wishes to hire an attorney, she may not be able to find one).
77. See, e.g., McMahon, supra note 41, at 867 (excluding prisoners from the assertion that the legal market adequately determines meritorious cases because they have "virtually no opportunity to search for counsel").
78. See, e.g., Bauer v. Comm'r, 97 F.3d 45, 49-50 (4th Cir. 1996) (acknowledging that a pro se litigant had the funds and ability to obtain counsel and was therefore not entitled to "preferential treatment");
79. Landsman, supra note 29, at 444-45 (emphasizing the presence among pro se litigants of "individuals who can afford counsel but choose not to hire a lawyer");
80. Swank, supra note 22, at 378 (citing a survey in which almost half of the pro se litigants "implied that they had the necessary funds to hire an attorney, but chose not to");
81. Spencer G. Park, Note, Providing Equal Access to Equal Justice: A Statistical Study of Non-Prisoner Pro Se Litigation in the United States District Court fin the Northem District of California in San Francisco, 48 HASTINGS L.J. 821, 831 (1997) ("[T]he overwhelming majority of pro se litigants, 72%, were not legally 'indigent' ....").
82. See Jona Goldschmidt, The Pro Se Litigant's Struggle for Access to Justice: Meeting the Challenge of Bench and Bar Resistance, 40 FAM. CT. REV. 36, 36 (2002) (discussing "antilawyer sentiment" as a reason for increased pro se litigation);
83. Eric J.R. Nichols, Note, Preserving Pro Se Representation in an Age of Rule 11 Sandions, 67 TEX. L. REV. 351, 380 (1988) (placing distrust of the legal system among the reasons why litigants choose to proceed pro se). It seems, then, that the antilawyer sentiment partially responsible for solidifying self-representation as an element of the Anglo-American legal tradition has not dissipated, but rather continues to nurture its growth.
84. See Swank, supra note 22, at 379 (presenting noneconomic reasons for which some litigants choose to represent themselves); .
85. see also supra Section IA (discussing the foundations upon which the right to self-representation rests, including the notion that the retention of counsel should not substantially alter outcomes).
86. See Swank, supra note 22, at 378-79 (listing factors that in recent years have contributed to the growing inclination toward pro se litigation).
87. See, e.g., Thompson, supra note 46, at 1316 (asserting that thirty-one percent of pro se litigants in Idaho consulted counsel, and many were advised not to obtain representation because "their case [wa]s simple enough for them to handle themselves").
88. See Rosenbloom, supra note 5, at 308-09 (discussing the methods by which overburdened courts summarily dispose of pro se cases).
89. Swank, supra note 22, at 384 (quoting Buxton, .supra note 31, at 114).
90. See JONA GOLDSCHMIDT ET AL., MEETING THE CHALLENGE OF PRO SE LITIGATION: A REPORT AND GUIDEBOOK FOR JUDGES AND COURT MANAGERS 121 (1998) (quoting judges who expressed distaste for pro se litigants).
91. Rosenbloom, supra note 5, at 358-59.
92. See, e.g., Buxton, supra note 31, at 145-46 (citing a study which found that civil pro se claims settled at a rate "virtually identical" to that of cases with represented parties);
93. Rosenbloom, supra note 5, at 358-59 (noting that cases longest on the docket involved represented parties). The lighter burden that pro se suits impose upon courts in comparison to counseled suits reflects not only pro se litigants' unfamiliarity with available litigation tactics but also the less complex nature of the claims that pro se litigants pursue. Accordingly, pro se suits are particularly good candidates for the sort of limited, court-supervised discovery that many commentators and the Iqbal minority have suggested as more appropriate than stringent pleading requirements.
94. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1961-62 (2009) (Breyer, J., dissenting) ("[A] trial court, responsible for managing a case,. .. can structure discovery .... Neither the briefs nor the Court's opinion provides convincing grounds for finding these alternative casemanagement tools inadequate ...." (citation omitted));
95. A. Benjamin Spencer, Understanding Pleading Doctrine, 108 MICH. L. REV. 1, 30 (2009) ("[A] better approach might be to permit judges to identify those cases where additional facts are needed to support the needed inference and reserve judgment on the motion to dismiss until after limited, focused discovery on that issue can occur."). The discovery costs would not be crushing and would most likely be less than the costs in time and effort to courts evaluating pro se complaints, which are significant in light of the accommodations to which they are entitled.
96. See Buxton, supra note 31, at 117 (acknowledging the "extensive time and effort already expended by court clerks and ...judges in assisting pro se litigants").
97. See, e.g., Rosenbloom, supra note 5, at 359 (noting that "counseled cases generally consisted of 50% more docket entries than non-counseled cases").
98. See VanWormer, supra note 20, at 993 ("[T]he self-represented 'are more likely to . . . have problems understanding and applying the procedural and substantive law pertaining to their claim' in the initial stages of litigation." (footnote omitted)
99. (quoting Buxton, .supra note 31, at 114)).
100. See, e.g., Pomales v. Celulares Telefónica, Inc., 342 F.3d 44, 49 n.4 (1st Cir. 2003) ("[P]ro se status did not absolve [plaintiff] of the need to comply with . .. the district court's procedural rules.");
101. Creative Gifts, Inc. v. UFO, 235 F.3d 540, 549 (10th Cir. 2000) ("Although pro se litigants get the benefit of more generous treatment in some respects, they must nonetheless follow the same rules of procedure that govern other litigants." (citation omitted));
102. Edwards v. INS, 59 F.3d 5, 8 (2d Cir. 1995) ("[P]ro se litigants generally are required to inform themselves regarding procedural rules and to comply with them."). The distinction between treatment of procedural and substantive deficiencies is not hard and fast. A small subset of federal courts have rel [ied] upon the Supreme Court's rationale in Haines v. Kerner to fashion a relaxed set of pro se standards for procedural conformity, particularly when dealing with summary judgment proceedings, compliance with discovery rules, the imposition of sanctions, and the introduction of evidence. A greater number of courts, however, take a more traditional approach and extend ... pleading leniency only to the substantive issues raised, while continuing to strictly enforce compliance with procedural requirements by pro se litigants. Buxton, supra note 31, at 118 (footnotes omitted).
103. See Nichols, supra note 49, at 351 (acknowledging that some pro se litigants draft illogical and rambling pleadings that are difficult to decipher).
104. See Wayne T. Westling & Patricia Rasmussen, Prisoners' Access to the Courts: Legal Requirements and Practical Realities, 16 LOY. U. CHI. L.J. 273, 309 (1985) (emphasizing that poor presentation can lose a case with merit).
105. See Julie M. Bradlow, Procedural Due Process Rights of Pro Se Civil Litigants, 55 U. CHI. L. REV. 659, 678 (1988) (noting that flexible construction of pro se pleadings is meant to combat dismissal where a cause of action exists but the complaint fails to say the "magic words").
106. See Donald H. Zeigler & Michele G. Hermann, The Invisible Litigant: An Inside View of Pro Se Actions in the Federal Courts, 47 N.Y.U. L. REV. 157, 203-04 (1972) (noting that pro se plaintiffs are "almost totally unaware of the .. . value and techniques of pretrial discovery and investigation").
107. See VanWormer, supra note 20, at 992 (listing the availability of legal forms as one of the factors responsible for pro se litigants' belief that they can successfully prosecute their cases without representation).
108. See, e.g., FED. R. CIV. P. Form 11 (demonstrating the brief and general elements that must be included in a complaint alleging negligence);
109. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 576 (2007) (Stevens, J., dissenting) (discussing the "bare allegation[s]" included in Form 9 of the Federal Rules).
110. See infra notes 89-91 and accompanying text (discussing district courts' tendency to stray from the liberal pleading regime established under Conley).
111. See Edward M. Holt, How to Treat "Fools": Exploring the Duties Owed to Pro Se Litigants in Civil Cases, 25 J. LEGAL PROF. 167, 168-69 (2001) (asserting that the Supreme Court responded to the potential for unfair dismissal of pro se cases by requiring judges to liberally construe pro se litigants' complaints).
112. 404 U.S. 519, 520-21 (1972) (per curiam). The Court has reaffirmed the lenient standard in cases following its initial pronouncement in Haines.
113. See, e.g., Fed. Express Corp. v. Holowecki, 128 S. Ct. 1147, 1158 (2008) ("Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.");
114. Estelle v. Gamble, 429 U.S. 97, 106 (1976) ("The handwritten pro se document is to be liberally construed.").
115. Haines, 404 U.S. at 520-21
116. (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
117. See Bacharach & Entzeroth, supra note 7, at 29 (asserting that the Court "did not define the degree of relaxation" applicable to pro se complaints).
118. See id. at 29-30 ("Not surprisingly, federal courts take varying approaches regarding 'how liberal' the construction of pro se pleadings should be.");
119. Douglas A. Blaze, Presumed Frivolous: Application of Stringent Pleading Requirements in Civil Rights Litigation, 31 WM. & MARY L. REV. 935, 971-72 (1990) (concluding that lower courts have frequently ignored or given only "superficial acknowledgment" to the requirement that pro se pleadings be liberally construed).
120. Indeed, lower court opinions often give only cursory mention of the method by which they implement liberal construction in a standard of review section without specific explanation of how it is given effect when particular allegations are evaluated.
121. See, e.g., Proctor v. Applegate, 661 F. Supp. 2d 743, 759-60 (E.D. Mich. 2009) (acknowledging the liberal construction afforded a pro se complaint in its "standard of review" section, but failing to make further mention of the doctrine in discussion, despite concluding that many of the asserted claims should be dismissed).
122. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (describing liberal construction as requiring the court to read the pleadings to state a valid claim if reasonable, despite, among other things, a pro se litigant's "confusion of various legal theories" and "poor syntax and sentence construction"). That both of these concessions would be misguided and unfair to the opposition if a pro se complaint were drafted with the aid of counsel-albeit undisclosed-explains courts' strong disapproval of the practice that has come to be known as "ghostwriting."
123. See, e.g., Delso v. Trs. for the Ret. Plan for the Hourly Emps. of Merck & Co., No. 04-3009, 2007 WL 766349, at *16-17 (D.N.J. Mar. 6, 2007) (concluding that a lawyer's informal assistance to a pro se litigant in drafting a court document violated the lawyer's ethical obligations because it provided the litigant undue advantage in light of the leeway afforded pro se litigants). Permitting limited-scope representations, or "unbundled" legal services, is one oft-suggested way to deal with the undue advantage gained when lawyers assist in drafting documents submitted pro se without disclosing ¿heir participation to the court.
124. See, e.g., Michael W. Loudenslager, Giving Up the Ghost: A Proposal for Dealing with Attorney "Ghostwriting" of Pro Se Litigants' Court Documents Through Explicit Rules Requiring Disclosure and Allowing Limited Appearance for Such Attorneys, 92 MARQ. L. REV. 103, 105 (2008). Allowing limited assistance in this fashion could curtail the extra effort demanded of courts when considering pro se complaints drafted with the assistance of counsel because the complaints would be less difficult to decipher. It would also thereby allay concerns over less meritorious complaints surviving motions to dismiss merely because of the leeway afforded to them.
125. See Jeffrey P. Justman, Note, Capturing the Ghost: Expanding Federal Rule of Civil Procedure 11 to Solve Procedural Concerns with Ghostwriting, 92 MINN. L. REV. 1246, 1287 (2008) (recommending an amendment to Federal Rule of Civil Procedure 11 that would allow for limited-scope representation and suggesting that such an amendment would make representation more accessible to pro se litigants).
126. See, e.g., Hall, 935 F.2d at 1110 (noting that liberal construction does not prevent pro se litigants from having to allege sufficient facts to state a claim).
127. See Westling & Rasmussen, supra note 62, at 309 ("There is no doubt that a good case can be lost by poor presentation.... Even an otherwise meritorious claim can become lost in a tangle of facts, extraneous material, unsupported assertions, and fallacious arguments.");
128. Zeigler & Hermann, supra note 64, at 181-82 (acknowledging the negative effect that pro se litigants' "inability to communicate effectively in writing" can have on their complaints, often leading to dismissal for being "rambling and conclusory").
129. See Zeigler & Hermann, supra note 64, at 182 n.91 (discussing the "emotional distortions" in many pro se pleadings, as well as their tendency to "slip into an imitation of legal jargon copied from other sources").
130. For example, a civil rights complaint... may begin in flamboyant, legalsounding rhetoric with a series of broad generalizations about civil and human rights. At some point the complainant may state conclusorily that he was "brutally beaten by the guard" and then, with renewed vigor, launch into frenzied attacks on prison conditions in general. Id. at 182.
131. See, e.g., Hall, 935 F.2d at 1110 (listing "poor syntax and sentence construction" as two flaws that should be overlooked in evaluating the sufficiency of pro se complaints).
132. See, e.g., Ayres v. Ellis, No. 09-4247, 2009 WL 3681892, at *1 (D.N.J. Nov. 4, 2009) (quoting a pro se complaint's unclear factual averments and extracting from them the facts that the pro se litigant "meant to allege").
133. See, e.g., Weixel v. Bd. of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002) (construing a pro se complaint to make the best arguments that the allegations suggest);
134. Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985) (providing a pro se petition for habeas corpus an "active interpretation" to "encompass any allegation stating federal relief (quoting White v. Wyrick, 530 F.2d 818, 819 (8th Cir. 1976) (per curiam))).
135. See Lee v. Rios, No. 08-5330, 2010 WL 22328, at *4 (6th Cir. Jan. 6, 2010) ("Thus, this Court should construe his argument that he was 'deprived ... of the fundamental fairness in the parole voting process' as an assertion that the Commission violated his right to procedural due process." (omission in original) (citation omitted)).
136. See, e.g., Martin v. Overton, 391 F.3d 710, 713 (6th Cir. 2004) (construing a civil rights claim to be instead a habeas petition because that was the only viable claim based upon the allegations set forth in the complaint). Judge Bacharach and Professor Entzeroth take issue with the judicial practice of reading into pro se complaints claims "fairly [but perhaps not explicitly] raised."
137. Bacharach & Entzeroth, supra note 7, at 32-41.
138. To illustrate the flaws in such an approach, they point to how it conflicts with the statutory schemes created by the PLRA and AEDPA Id. at 35-41.
139. For example, if a judge reads into a pro se complaint a claim as to which the plaintiff did not exhaust administrative remedies, the practice may lead to dismissal of the entire action under the PLRA. Id. at 34.
140. In addition, if a judge construes a civil rights complaint as a habeas petition that ultimately fails, the pro se litigant then faces nearly insurmountable hurdles under AEDPA to filing a successive petition for habeas relief. Id. at 37.
141. To the authors, these pitfalls suggest that activist approaches toward pro se litigants should be constrained because they often punish intended beneficiaries.
142. See id. at 41 ("With this intangible loss of a judge's neutrality, the courts may be creating unintended penalties for the litigants who the courts are paradoxically trying to help.").
143. See id. at 43-44 (suggesting that a pro se litigant's intent should be the hallmark of the leeway granted her complaint).
144. See Bradlow, supra note 63, at 681-82 (discussing development of the Haines approach in relation to Conley and concluding that the "ultimate result is a less stringent interpretation of what is itself a very lax standard");
145. see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (articulating the "no set of facts" standard).
146. See, e.g., Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (per curiam) (observing that "it is settled law that the allegations of [a pro se] complaint... are held to 'less stringent standards'" and noting that such complaints "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 (citations omitted) (quotingHaines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam))).
147. Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in judgment).
148. See Fairman, supra note 9, at 988 (describing notice pleading as a touchstone of the Federal Rules, merely requiring that a "plaintiff provide a short and plain statement of a claim sufficient to put the defendant on notice" in order to survive a motion to dismiss).
149. See supra subsection I.C.I (discussing the ways by which lower courts implement liberal construction in practice).
150. See Hatamyar, supra note 15, at 567-68 (noting that lower courts often disregarded the Supreme Court's explicit instructions to apply lenient notice pleading standards, instead insisting on heightened pleading requirements, particularly in civil rights cases).
151. See Marcus, supra note 13, at 466-71 (discussing courts' tendency to label some factual allegations conclusory and thereby require more supporting evidence for them to be sufficient).
152. See Fairman, supra note 9, at 1011-59 (documenting lower courts' insistence that complaints contain greater factual specificity in various fields of law, including antitrust, environmental, and civil rights).
153. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (reversing a lower court ruling that employment discrimination complaints must allege "specific facts establishing a prima facie case of discrimination" and holding that they must only present "a short and plain statement of the claim showing that the pleader is entitled to relief" (citation omitted)). Notably, however, the Court's recent rulings in Twombly and Iqbal have called the continuing vitality of Swierkiewicz into question.
154. See, e.g., Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) ("We have to conclude . .. that because Conley has been specifically repudiated by both Twombly and Iqbal, so too has Swierkiewicz, at least insofar as it concerns pleading requirements and relies on Conley.");
155. Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 LEWIS & CLARK L. REV. 15, 18 (2010) (declaring that, as a result of the similarities between the new motion to dismiss and the motion for summary judgment, Swierkiewicz "effectively may be dead"). Nevertheless, in neither case did the Supreme Court specifically overturn its decision in Swierkiewicz.
156. See Thomas, supra, at 36 (acknowledging that "Iqbal and Twombly did not expressly overrule Swierkiewicz"). In fact, the Court cited it approvingly in Twombly, which together with other commonalities between the two cases-among them, endorsement of a fairnotice principle in Rule 8(a)-suggest that Swierkiewicz is still good law. Compare hell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (asserting that Rule 8(a)(2) only requires "a short and plain statement" to "give the defendant fair notice of what the .. . claim is and the grounds upon which it rests" (citation omitted)), with Swierkiewicz, 534 U.S. at 514 (noting that the complaint satisfies the requirements of Rule 8(a) because it gives fair notice to the defendant).
157. See Howard B. Eisenberg, Rethinking Prisoner Civil Rights Cases and the Provision of Counsel, 17 S. ILL. U. L.J. 417, 443 (1993) (concluding from a review of reported district court and court of appeals decisions that many courts have applied stringent pleading standards to pro se complaints).
158. See Section II.B for a more in-depth explanation of how the conflagration of challenges facing pro se litigants post-Iqbal renders liberal construction an ineffective bulwark against improper dismissals for failure to state a claim.
159. Hatamyar, supra note 15, at 615.
160. Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008) (emphasis added). Interestingly, the complaint in Boykin was quite similar to the one dismissed in Iqbal. In Boykin, an African American woman alleged that a lender denied her home-equity loan application on account of her race, sex, and neighborhood. Id. at 206. In her complaint, she did not state specific factual allegations to support the claim of discriminatory motive, instead alleging it generally based upon "information and belief." Id. at 214 (citation omitted). The Second Circuit reversed the dismissal of the complaint for failure to state a claim, noting that the general averment was sufficient for Rule 8(a) purposes. Id. at 215. Whether the same decision would have resulted after Iqbal is unclear; however, the court's strong emphasis on the leeway granted pro se complaints, even under Twombly, lends hope for more robust liberal construction of the sort proposed herein.
161. See, e.g., Twombly, 550 U.S. at 562-63 (holding that the "no set of facts" standard has earned its retirement and "is best forgotten").
162. Id. at 570. For an interesting account of the origins of plausibility, see Edward Brunet, The Substantive Origins of "Plausible Pleadings": An Introduction to the Symposium on Ashcroft v. Iqbal, 14 LEWIS & CLARK L. REV. 1, 3-9 (2010). Professor Brunet traces the origins of the word "plausible" to antitrust litigation, in which the Court used the term substantively to evaluate whether a conspiracy claim made "economic sense." Id. at 4. According to him, "[b]ecause of the prior substantive use of plausibility it seems highly questionable to re-use this term as a new procedural standard for assessing Rule 12(b) (6) motions to dismiss. ... Plausibility as a standard to test pleadings seems confused and should be scrapped." Id. at 14.
163. Twombly, 550 U.S. at 556.
164. See Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85 NOTRE DAME L. REV. 849, 852 (2010) ("Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits."). This is certainly not the only significant change brought about by the Court's decision in Iqbal. In addition to its ruling with respect to pleading standards, the Iqbal Court eliminated the possibility of supervisory liability in Bivens claims, which are made against federal officials for constitutional violations.
165. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (refuting the petitioner's contention that officials can be made liable under Bivens pursuant to a theory of supervisory liability and holding that "each Government official... is only liable for his or her own misconduct");
166. see also generally Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (providing a private remedy for violations of the Fourth Amendmet by federal agents). This will no doubt cause Shockwaves in lower courts, which, prior to Iqbal, acknowledged forms of supervisory liability in Bivens actions, despite the well-established precedent that such claims cannot be based upon respondeat superior.
167. See, e.g., Dalrymple v. Reno, 334 F.3d 991, 995 (11th Cir. 2003) (discussing the standard for supervisory liability in a Bivens action);
168. Ruiz Rivera v. Riley, 209 F.3d 24, 28-29 (1st Cir. 2000) (acknowledging that in Bivens actions, supervisory liability exists only when "there is subordinate liability" and "the supervisor's action or inaction was affirmatively linked to the constitutional violation caused by the subordinate"
169. (quoting Aponte Matos v. Toledo-Dávila, 135 F.3d 182, 192 (1st Cir. 1998)) (internal quotation marks omitted));
170. White v. Downs, No. 95-2177, 1997 WL 210858, at *4 (4th Cir. Apr. 30, 1997) (per curiam) ("Although there is no respondeat superior liability in Bivens actions, a supervisor c [an] be held liable for the acts of a subordinate . .. ." (citations omitted)). Whether the Court should even have decided the issue is questionable because both parties agreed on the availability of supervisory liability and the standard pursuant to which it should be judged, such that the question was not presented to the Court.
171. See Iqbal, 129 S. Ct. at 1956-58 (Souter, J., dissenting) (asserting that the majority "sua sponte decide [d] the scope of supervisory liability" despite the parties' agreement on the issue). The absence of full briefing and argument on the Bivens issue may undercut the precedential effect of the Court's elimination of supervisory liability.
172. See EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE 305 & n.94 (9th ed. 2007) (noting that "decisions explained in a written opinion but rendered without full briefing and argument" are not entitled to as much weight as decisions that are "fully articulated").
173. See Iqbal v. Hasty, 490 F.3d 143, 147-49 (2d Cir. 2007) (recounting Iqbal's arrest by the FBI and INS, as well as his subsequent detention in the Metropolitan Detention Center),
174. rev'd sub nom. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
175. See Burbank, supra note 16, at 114 (detailing the facts preceding Iqbal's complaint, including a guilty plea leading to his removal to Pakistan).
176. Iqbal, 490 F.3d at 149;
177. Elmaghraby v. Ashcroft, No. 04-01809, 2005 WL 2375202, at *1 (E.D.N.Y. Sept. 27, 2005).
178. Iqbal, 129 S. Ct. at 1943-44.
179. Id.
180. Id.
181. Id. (alteration in original) (quoting Iqbal's complaint).
182. Id.
183. Elmaghraby v. Ashcroft, No. 04-01809, 2005 WL 2375202, at *17 (E.D.N.Y. Sept. 27, 2005).
184. Id. at *29.
185. See Iqbal, 129 S. Ct. at 1942 (describing the procedural history in the lower courts).
186. See Iqbal v. Hasty, 490 F.3d 143, 177 (2d Cir. 2007) ("Applying the normal pleading rules ... , even as supplemented by the plausibility standard, we have no doubt that the Plaintiff's allegations .. . suffice to withstand a motion to dismiss."),
187. rev'd sub nom. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
188. See id. at 157-58 (emphasizing that a pleader need only "amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible").
189. See id. at 166 ("Plaintiffs allegations . .. are entirely plausible, without allegations of additional subsidiary facts.").
190. Id. at 175-76.
191. Iqbal, 129 S. Ct. at 1954.
192. See id. at 1952 (holding that the complaint did not contain facts plausibly showing the petitioners' purposeful adoption of a discriminatory policy).
193. See id. at 1955 (Souter, J., dissenting) ("The majority then misapplies the pleading standard under Bell Atlantic Corp. v. Twombly to conclude that the complaint fails to state a claim." (citation omitted));
194. see also Burbank, supra note 16, at 115 (commenting that Iqbal's "mischief is likely a "major source of regret for the author of the Twombly decision").
195. See Iqbal, 129 S. Ct. at 1949 (majority opinion) (asserting that a court need not accept as true "mere conclusory statements"). Notably, the Court did not outright "cast aside the assumption-of-truth rule, which holds that a claimant's factual allegations are entitled to be believed and accepted at the pleading stage." A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 LEWIS & CLARK L. REV. 185, 192 (2010)
196. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ). However, the Court's treatment of the allegations in Iqbal's complaint does question the rule's vitality going forward. Id. Indeed, one commentator has characterized the plausibility inquiry as secondary to the first step at which certain allegations are ignored.
197. See Adam N. Steinman, The Pleading Problem, 62 STAN. L. REV. 1293, 1314 (2010) (asserting that the "'plausibility' inquiry is not in fact the primary inquiry at the pleadings phase" and suggesting that it "becomes irrelevant if a plaintiff provides nonconclusory allegations for each element of a claim for relief).
198. Compare Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007) (concluding that the complaint's "stray" allegations of illegal "agreement" were "merely legal conclusions"), with Iqbal, 129 S. Ct. at 1951 (dismissing repondent's allegations regarding petitioners' knowledge as "bare" and "conclusory").
199. See Has the Supreme Court Limited Americans' Access to Courts?: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 12 (2009) (statement of Stephen B. Burbank, Professor, University of Pennsylvania Law School), available at http://judiciary.senate.gov/ hearings/hearing.cfm?id=4189 (under "Witness Testimony") (noting that the Court claimed the power to "carve a complaint" by ignoring some allegations of fact and mixed allegations of law and fact as conclusory);
200. Bone, supra note 100, at 860-61 (concluding that the Iqbal Court's approach to differentiating between conclusory and nonconclusory facts is based upon the level of generality at which they are stated).
201. See Iqbal, 129 S. Ct. at 1951 (dismissing allegations as conclusory without discussion of other allegations to which they are related);
202. .see also Rakesh N. Kilaru, Comment, The New Rule 12(b)(6): Twombly, Iqbal, and the Paradox of Pleading, 62 STAN. L. REV. 905, 913 (2010) ("To Justice Kennedy, each allegation must stand or fall on its own ....").
203. Bone, supra note 100, at 859;
204. see also Iqbal, 129 S. Ct. at 1960 (Souter, J., dissenting) (suggesting that singling out certain allegations from a complaint as a whole is a "fallacy" inhering in the majority's approach).
205. Iqbal, 129 S. Ct. at 1953 (majority opinion).
206. Id. at 1951.
207. Id. at 1950;
208. see also Burbank, supra note 16, at 118 (characterizing the Court's analysis as a necessarily comparative one in which judges imagine, based on their predispositions, other possible explanations for the allegations included in a complaint). In evaluating motions to dismiss, courts are confined to reviewing facts in the complaint, documents referred to therein, and facts of which judicial notice is taken.
209. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) ("[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice."). Thus, courts' consideration of competing inferences made from neither the plaintiffs pleadings nor the defendant's responses thereto-considered sua sponte, if you will-suggests that their analysis may extend beyond the proper scope of a Rule 12(b) (6) determination.
210. See Has the Supreme Court Limited Americans'Access to Courts?, supra note 121, at 12 ("Twombly involved assessing competing inferences in a well-trodden path of antitrust law, [but] in Iqbal the Court was at sea, subjecting the competing inferences, most of which were left to the [Justices' imaginations, to an implicit comparative exercise.");
211. see also Bone, supra note 100, at 877 (characterizing Iqbal's story as "unusual enough to suggest something fishy might be going on").
212. See, e.g., Iqbal, 129 S. Ct. at 1951-52 (concluding that, given more likely and obvious explanations for defendants' conduct, the allegations failed to raise a plausible inference of wrongdoing).
213. Professor Spencer's analysis of the Court's treatment of Iqbal's supposedly "conclusory" allegations suggests that the plausibility inquiry does not even involve two distinct steps: At bottom .. . the Court's rejection of certain factual allegations as "too conclusory" is really a statement that (1) the allegations are factual claims that assert the unexpected, particularly about certain kinds of defendants ... ; (2) as such, the allegations require additional supporting facts to be believed; and (3) such facts are lacking in the claimant's statement of his claim.
214. Spencer, supra note 119, at 196. However, the initial step in Professor Spencer's deconstruction of Iqbal's approach involves a question of believability, or what many would term "plausibility."
215. Iqbal, 129 S. Ct. at 1951 (internal quotation marks omitted).
216. Id. at 1952 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
217. See id. at 1951-52 (citing Twombly, 550 U.S. at 567) (emphasizing that a policy of targeting suspected terrorists and housing them in a restrictive environment is an "obvious alternative explanation," which only suggests disparate impact and not discriminatory purpose).
218. Herrmann, Beck & Burbank, supra note 4, at 148 (Burbank, Rebuttal) (arguing that, rather than clarifying pleading standards, the recent pleading decisions "changed them").
219. Unfortunately, commentators have given this relatively glaring development only casual, passing consideration.
220. See, e.g., Bacharach & Entzeroth, supra note 7, at 29-32 (noting that the new plausibility standard will change the extent to which courts liberally evaluate pro se complaints because it increases the subjectivity of the analysis).
221. Scholars have similarly singled out other types of cases for reevaluation in light of Twombly and Iqbal, concluding that the new plausibility standard is so poor a fit for such cases that an entirely different standard is necessary.
222. See, e.g., Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. ILL. L. REV. 1011, 1041-50 (proposing a new pleading standard to replace plausibility for evaluating employment discrimination complaints).
223. 551 U.S. 89 (2007) (per curiam). The acceptance of such an unremarkable case and the timing of its decision suggest that the Supreme Court sought to maintain, as one critic put it, "deniability": the capacity to check excessive usages of plausibility to give the appearance of maintaining a consistent pleading doctrine.
224. See Editorial, The Devil in the Details, 91 JUDICATURE 52, 54 (2007) ("More probably, Twombly is an exercise in strategic ambiguity that empowers the lower federal courts to tighten pleading .. . while preserving deniability. . . [by] correct [ing] perceived excesses (as in Erickson).");
225. Amy Howe, More on Yesterday's Decision in No. 06-7317, Erickson v. Pardus, SCOTUSBLOG (June 5, 2007, 5:10 PM), http://www.scotusblog.com/2007/06/ more-on-yesterdays-decision-in-no-06-7317-erickson-v-pardus (suggesting that the Court's decision was meant to "counteract the impression" that Twombly heightened pleading standards).
226. Whether plausibility analysis applied at all to pro se pleadings was in question in the wake of Erickson. See, e.g., Anthony Martinez, Case Note, Plausibility Among the Circuits: An Empirical Survey of Bell Atlantic Corp. v. Twombly, 61 ARK. L. REV. 763, 775 (2009) ("Erickson implies that the Twombly standard may not be applicable to a complaint filed by a pro se plaintiff."). However, this seems to have been wishful thinking, because lower courts overwhelmingly cite the new standard when considering pro se complaints.
227. See, e.g., Severin v. Parish of Jefferson, 357 F. App'x 601, 603 (5th Cir. 2009) (per curiam) (applying the plausibility standard to a pro se complaint);
228. Grabauskas v. CIA, 354 F. App'x 576, 576-77 (2d Cir. 2009) (dismissing a pro se complaint for failing to raise a plausible inference of wrongdoing).
229. See Complaint at 3, Erickson v. Pardus, 551 U.S. 89 (2007) (No. 05-0405) (per curiam), 2005 WL 5543460 (claiming that prison staff were deliberately indifferent to plaintiff's medical needs in violation of the Eighth Amendment).
230. 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, 636 (2007) (citing Complaint, supra note 138, at 3).
231. See Erickson v. Pardus, 198 Fed. App'x 694, 698 (10th Cir. 2006) (recounting the basis for the district court's dismissal of the pro se complaint),
232. vacated, Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam).
233. See id. (explaining that Erickson's complaint included only conclusory allegations regarding an independent cognizable harm from the doctors removing him from treatment).
234. See, e.g., id. at 696 (noting that a "pro se litigant's pleadings are to be construed liberally" but that a court "is not required to assume the role of advocate" (internal quotation marks omitted) (citations omitted)).
235. See Erickson, 551 U.S. at 93 (concluding that it was error for the Court of Appeals to dismiss the allegations of independent harm as conclusory).
236. See Hatamyar, supra note 15, at 573 ("The [Erickson] Court did not even refer to the 'plausibility' standard .. ..");
237. Ides, supra note 139, at 639 (noting that the Erickson Court only cited Twombly twice for propositions unrelated to plausibility).
238. Erickson, 551 U.S. at 93 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the Court correctly deemed the complaint sufficient to survive a Rule 12(b)(6) motion, it confused the notice-giving requirements of 12(e) with the requirements of substantive sufficiency in 12(b) (6).
239. See Burbank, supra note 16, at 114 (implying that notice is irrelevant under Rule 12(b) (6) and is properly considered under Rule 12(e));
240. Ides, supra note 139, at 637-38 (suggesting that a problem inheres in the Court's emphasis on fair notice, rather than substantive sufficiency, which seems to undergird its decision).
241. See Erickson, 551 U.S. at 94 (claiming that the departure from liberal pleading standards "is even more pronounced . .. because petitioner has been proceeding .. . without counsel," but asserting that the allegations were sufficient irrespective of plaintiff's pro se status).
242. See id. (noting that "[a] document filed pro se is 'to be liberally construed'" (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))).
243. See Editorial, supra note 136, at 54 (asserting that the lower court rulings in Erickson were out of line with Twombly). One could also argue that, by holding the complaint sufficient to survive a motion to dismiss, the Court implicitly acknowledged that Erickson met the Twombly standard because the Court espoused the belief that Twombly had not changed pleading requirements.
244. See Erickson, 551 U.S. at 94 (analyzing the complaint's assertion that the plaintiffs removal from treatment "was endangering" his life).
245. See id. (concluding that the allegations alone were sufficient to satisfy pleading requirements before mentioning liberal construction).
246. See Ides, supra note 139, at 638 (asserting that Erickson demonstrates lower courts' "overly fastidious and inappropriate insistence on the pleading of 'nonconclusory' facts").
247. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1961 (2009) (Souter, J., dissenting) ("[T]he majority's holding that the statements it selects are conclusory cannot be squared with its treatment of certain other allegations in the complaint as nonconclusory.").
248. See infra subsections II.B.2-3 (documenting and explaining the disproportionate increase in the dismissal rate of pro se complaints as compared to other complaints post-Iqbal).
249. See McMahon, supra note 41, at 867-68 (hypothesizing that Erickson simply means that the plausibility standard should be less stringently applied to pro se complaints than complaints prepared by counsel).
250. See, e.g., Kendall W. Hannon, Comment, 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, 1815 (2008) (concluding from an initial study of Twombly that the new plausibility standard had "almost no substantive impact," except in civil rights cases (emphasis in original)). Importantly, these speculations largely related only to Twombly and did not predict Iqbal's strengthening of the plausibility standard. Nevertheless, even after Iqbal, some commentators refuse to acknowledge that the recent Supreme Court rulings ushered in a new era of pleading and insist that the decisions have not significantly altered how courts evaluate motions to dismiss for failure to state a claim.
251. See, e.g., Has the Supreme Court Limited Americans' Access to Courts?: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 21-23 (2009) (statement of Gregory G. Garre, Partner, Latham & Watkins LLP), available at http://judiciary.senate.gov/hearings/hearing.cfm?id=4189 (under "Witness Testimony") (concluding that Twombly and Iqbal have not led to "wholesale dismissal of claims"). Still, others occupy a more middle ground, declining to paint the new decisions as contrary to traditional pleading practice and attempting instead to reconcile the two.
252. See, e.g., Edward A Hartnett, Taming Twombly, Even After Iqbal, 158 U. PA. L. REV. 473, 474 (2010) ("Rather than decrying Twombly as a radical departure and seeking to overturn it, this Article instead emphasizes Twombly's connection to prior law and suggests ways in which it can be tamed.").
253. See Hatamyar, supra note 15, at 600 (asserting that Iqbal increased the rate of dismissal sufficiently to "reject the null hypothesis" that the ruling had no effect on 12(b)(6) motions).
254. Readers should note that the study observed this difference despite excluding from its sample prisoner complaints reviewed under the PLRA and complaints submitted with an application to proceed in forma pauperis.
255. See id. at 585. Although such an exclusion, the author notes, is necessary to make the study sound because slight inconsistencies may inhere in pleading standards for these claims and because the risk of bias is particularly acute, in practice these complaints are overwhelmingly filed by pro se litigants and are subject to an analysis similar to Iqbal's.
256. See Rosenbloom, supra note 5, at 322, 324-25 (noting that almost all pro se litigants proceed in forma pauperis and that a significant number are inmates). Accordingly, the actual discrepancy may be even more pronounced than that which the study observed.
257. Hatamyar, supra note 15, at 615.
258. Id. at 633 tbl. G.
259. Id. at 621 (emphasis added).
260. Id. at 623-24.
261. See Rosenbloom, supra note 5, at 322-23 tbl. II (presenting data showing the greater incidence of multiple defendants in pro se cases).
262. See Hatamyar, supra note 15, at 615 (detailing the increased rate at which pro se complaints are dismissed to conclude that "the boilerplate language that pro se plaintiffs' complaints should be treated with leniency is not taken very seriously" (footnotes omitted)). For a similar suggestion that the new pleading practice established by Iqbal is out of step with normative policies underlying civil rights legislation and should therefore be reconsidered,
263. see Howard M. Wasserman, Iqbal, Procedural Mismatches, and Civil Rights Litigation, 14 LEWIS & CLARK L. REV. 157 (2010). Although there is no abundance of legislation protecting pro se litigants of the sort that exists with respect to civil rights, our historical regard for the right to prosecute a case without counsel suggests that there is what Professor Wasserman terms a "procedural mismatch" between plausibility pleading and the policies articulated by liberal construction. It is this mismatch that this Comment seeks to resolve by reforming the treatment of pro se pleadings.
264. See supra subsection I.B.3 (surveying the general challenges faced by pro se litigants in crafting acceptable complaints, including those that may lead to less specific allegations).
265. See Kilaru, supra note 122, at 919-20 (asserting that the majority and dissenting opinions in Iqbal highlight just how "manipulable" the distinction between conclusory and nonconclusory allegations can be).
266. 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, 1257 (2008) ("Whether prudent or not, gathering additional factual information to include in the complaint is not costless.");
267. see also Bone, supra note 100, at 860-61 (showing that conclusory allegations are those that are stated at "too high a level of generality" and therefore need further factual support).
268. See Kilaru, supra note 122, at 927-28 (asserting that information about a defendant's mental state is difficult to discover, but, without adequately pleading mental state, motive-based tort claims are likely to fail);
269. see also Carl Tobias, Rule 11 and Civil Rights Litigation, 37 BUFF. L. REV. 485, 498 (1989) ("[I]n numerous civil rights suits, considerable information important to the factual preparation of complaints that appear specific will be in the records or minds of government or corporate defendants and cannot be secured before these pleadings must be filed, becoming available only during discovery.").
270. See Hatamyar, supra note 15, at 613 (discussing data showing that about half of the civil rights cases studied in the article were initiated pro se);
271. Rosenbloom, supra note 5, at 320 (noting that in a study of pro se litigants, the most common complaints were civil rights actions).
272. The Federal Rules of Civil Procedure endorse general allegations regarding elements of this nature.
273. See FED. R. CIV. P. 9(b) (permitting "[m]alice, intent, knowledge, and other conditions of a person's mind [to] be alleged generally"). However, the majority in Iqbal asserted that this rule "merely excuses a party from ... an elevated pleading standard" of the sort imposed upon claims of fraud by Rule 9(b). Ashcroft v. Iqbal, 129 S. Ct. 1937, 1954 (2009). Therefore, even allegations of discriminatory intent, and other states of mind, are subject to the limitation on conclusory statements.
274. See Iqbal, 129 S. Ct. at 1954 (concluding that Iqbal's "complaint fail[ed] to plead sufficient facts").
275. That proponents of strengthening pro se assistance advocate for increased access to such materials demonstrates pro se litigants' substantial reliance on them.
276. See, e.g., VanWormer, supra note 20, at 1014-15 (considering as necessary to assist pro se litigants a "centralized clearinghouse" through
277. See Charles E. Clark, Pleading Under the Federal Rules, 12 WYO. L.J. 177, 181 (1958) ("We require a general statement. How much? Well, the answer is made in what I think is probably the most important part of the rules so far as this particular topic is concerned, namely, the Forms.").
278. FED. R. CIV. P. Form 11 (setting forth the minimal allegations necessary to plead basic negligence, including date, place, and that the defendant "negligently drove a motor vehicle" resulting in injury to plaintiff).
279. See Bone, supra note 100, at 861 (acknowledging that Form 11 makes no mention of what defendant's car did to hit plaintiff or why it is alleged to have constituted negligence).
280. Id. For one court's acknowledgement that Iqbal calls into question the continuing viability of the Federal Rule Forms,
281. see Doe ex rel. Gonzalez v. Butte Valley Unified School District, No. 09-0245, 2009 WL 2424608, at *6-7 (E.D. Cal. Aug. 6, 2009).
282. See Ides, supra note 139, at 612 (asserting that the allegation of negligence in Form 9 is both a conclusion of law and an "assertion of fact. .. that.. . defendant drove in a manner below the standard of due care");
283. see also Bone, supra note 100, at 866 ("Today, it is settled law that a judge deciding a 12(b) (6) motion need not accept legal conclusions ... as true." (citation omitted)).
284. See FED. R. CIV. P. 84 ("The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.").
285. The inconsistency perhaps stems from the Supreme Court's circumvention of the appropriate rulemaking process by which to affect formal changes to pleading doctrine.
286. See Bone, supra note 100, at 861-62 (claiming that the Iqbal majority made it easier to conclude that the complaint failed the second prong by aggressively using the first prong).
287. materials related to the filing of such forms"). The importance of the forms appended to the Federal Rules cannot be overstated, as their primary architect, Charles Clark, considered them "the most important part of the rules" concerning pleading.
288. See Charles E. Clark, Pleading Under the Federal Rules, 12 WYO. L.J. 177, 181 (1958) ("We require a general statement. How much? Well, the answer is made in what I think is probably the most important part of the rules so far as this particular topic is concerned, namely, the Forms.").
289. FED. R. CIV. P. Form 11 (setting forth the minimal allegations necessary to plead basic negligence, including date, place, and that the defendant "negligently drove a motor vehicle" resulting in injury to plaintiff).
290. See Bone, supra note 100, at 861 (acknowledging that Form 11 makes no mention of what defendant's car did to hit plaintiff or why it is alleged to have constituted negligence).
291. Id. For one court's acknowledgement that Iqbal calls into question the continuing viability of the Federal Rule Forms,
292. see Doe ex rel. Gonzalez v. Butte Valley Unified School District, No. 09-0245, 2009 WL 2424608, at *6-7 (E.D. Cal. Aug. 6, 2009).
293. See Ides, supra note 139, at 612 (asserting that the allegation of negligence in Form 9 is both a conclusion of law and an "assertion of fact. .. that.. . defendant drove in a manner below the standard of due care"); .
294. see also Bone, supra note 100, at 866 ("Today, it is settled law that a judge deciding a 12(b) (6) motion need not accept legal conclusions ... as true." (citation omitted)).
295. See FED. R. CIV. P. 84 ("The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.").
296. The inconsistency perhaps stems from the Supreme Court's circumvention of the appropriate rulemaking process by which to affect formal changes to pleading doctrine.
297. See Bone, supra note 100, at 861-62 (claiming that the Iqbal majority made it easier to conclude that the complaint failed the second prong by aggressively using the first prong).
298. Burbank, supra note 16, at 117 (asserting that by giving judges the power to disregard factual allegations, Iqbal strengthened plausibility as "an invitation to the lower federal courts to screen out complaints in disfavored classes of cases").
299. See supra subsection I.B.3 (discussing bias against pro se litigants).
300. For a detailed discussion of the lessons about pleading that can be learned from summary judgment, see generally Hoffman, supra note 166, at 1240-43. For a more extreme take on the links between the two procedural devices,
301. see Thomas, supra note 92, at 28-34.
302. See Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837, 842-43 (2009) (coining the term and explaining its effect on the Court's decision to grant summary judgment).
303. Christopher Slobogin, The Perils of the Fight Against Cognitive Illiberalism, 122 HARV. L. REV. F. 1, 2 (2009), http://www.harvardlawreview.org/ media/pdf/slobogin.pdf.
304. See Has the Supreme Court Limited Americans' Access to Courts?, supra note 121, at 12-13 (explaining that the prejudicial effect of "cognitive illiberalism" is more "worrisome" at the motion to dismiss stage because of the lack of an evidentiary record).
305. See 550 U.S. 372, 386 (2007) (finding a police officer entitled to summary judgment).
306. See id. ("The car chase that respondent initiated in this case posed a substantial and immediate risk of serious physical injury to others; no reasonable jury could conclude otherwise.").
307. See Kahan, Hoffman & Braman, supra note 182, at 841 (noting that segments of the public that value egalitarianism and social solidarity more than hierarchy and individualism tended to disagree with the Court's conclusion in Scott v. Harris).
308. Id. at 843.
309. Id. at 842.
310. See, e.g., Makor Issues & Rights, Ltd. v. Tellabs Inc., 513 F.3d 702, 711 (7th Cir. 2008) ("The plausibility of an explanation depends on the plausibility of the alternative explanations.").
311. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (noting that a court must draw on its "judicial experience and common sense" when determining the plausibility of a claim);
312. Burbank, supra note 16, at 118 ("The Iqbal Court's reliance on 'judicial experience and common sense' is, in certain types of cases, an invitation to 'cognitive illiberalism' . .. .").
313. See Bacharach & Entzeroth, supra note 7, at 30-31 (noting that the rule set forth in Haines runs into trouble because "plausibility is inherently subjective and judges likely gauge 'plausibility' differently based on their ideologies, attitudes, and experiences").
314. 193See Kahan, Hoffman & Braman, supra note 182, at 879 (asserting that individuals whose opinions differed from the Court's shared "a core of identity-defining characteristics").
315. See OFFICE OF DEPUTY CHIEF ADMIN. JUDGE FOR JUSTICE INITIATIVES, SELFREPRESENTED LITIGANTS: CHARACTERISTICS, NEEDS, SERVICES 3 (2005), available at http://www.nycourts.gov/reports/AJJI-SelfRep06.pdf (reporting that over eighty percent of pro se litigants surveyed were not Caucasian).
316. Kahan, Hoffman & Braman, supra note 182, at 867.
317. See id. (finding that African Americans were significantly more likely to find for plaintiffs than Caucasians).
318. See id. at 879-80 (noting that differences, including degrees of wealth, affected whether individuals "view[ed] those in authority with trust or suspicion").
319. See Rosenbloom, supra note 5, at 323 ("Almost four out of every five pro se cases were filed against at least one government defendant.").
320. See, e.g., Russell K. Robinson, Perceptual Segregation, 108 COLUM. L. REV. 1093, 1154 (2008) ("[T]he courts tend to reflect the insider view that discrimination is rare and that most claims are meritless, rather than the opposing view that discrimination is pervasive.") For an assertion that the majority in Iqbal displayed these institutional biasing effects,
321. see Spencer, supra note 119, at 197-99.
322. See supra subsection I.B.2 (listing the reasons that litigants choose to proceed pro se, which include distrust for lawyers and the legal system in general).
323. For an acknowledgement that judges as a group may differ in their explanations of facts from other groups as a result of "legal and judicial professionalization,"
324. see Kahan, Hoffman & Braman, supra note 182, at 883.
325. This discussion should be read neither to insinuate bad faith on the part of federal judges construing pro se complaints nor to deny the myriad differences between federal pro se litigants. Instead, it is intended merely to call attention to the potential for the plausibility inquiry to disadvantage certain pro se complaints that an identifiable group of self-represented litigants tend to pursue and that implicate the courts' inherent trust in official behavior.
326. See, e.g., Hansen v. May, 502 F.2d 728, 729-30 (9th Cir. 1974) (holding that the lower court should have treated a pro se plaintiff's claim as one made pursuant to § 1983, despite having been styled as one for habeas corpus).
327. Notably, these challenges emerged prior to Twombly as a result of lower courts' informal elevation of pleading requirements. Thus, even if Congress overturns Twombly and Iqbal by statute, .
328. see, e.g., Notice Pleading Restoration Act of 2009, S. 1504, 111th Cong. (2009), these adaptations would still help to ensure that pro se litigants receive the accommodations necessary to protect their access to courts.
329. These recommendations are an attempt to adapt to the new plausibility standard, rather than to repudiate it as an incorrect construction of federal pleading requirements. They would most appropriately be implemented by judicial decree, just as was liberal construction itself. Indeed, a modified rule of liberal construction is illsuited to both the rulemaking and legislative processes. The Federal Rules are transsubstantive, rendering a party-specific rule anathema. And, while the federal government has codified special pleading requirements in the past, in this context, an analogous statute would unnecessarily constrain the judicial flexibility needed to accommodate pro se litigants.
330. See supra subsection II.B.1 (explaining why Erickson provides little assurance that liberal construction as presently practiced will meet the challenges facing pro se litigants post-Iqbal).
331. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (admonishing the lower court for dismissing allegations as conclusory when they were adequate to "put the[] matters in issue").
332. See FED. R. CIV. P. 1 (requiring that the Rules "be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding").
333. FED. R. CIV. P. 8(e).
334. See Walter Wheeler Cook, Statements of Fact in Pleading Under the Codes, 21 COLUM. L. REV. 416, 417 (1921) (rejecting the assumption "that there is some clear, easily drawn and scientific distinction" between facts and conclusions aside from the level of specificity at which they are stated). Indeed, the endeavor proved so difficult that the drafters of the Federal Rules abandoned it altogether.
335. See Burbank, supra note 16, at 115 ("Yet, an important reason why the drafters of the 1938 Federal Rules rejected fact pleading is that one person's 'factual allegation' is another's 'conclusion.'"
336. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 574-75 (2007) (Stevens, J., dissenting))).
337. See Leandra Lederman & Warren B. Hrung, Do Attorneys Do Their Clients Justice? An Empirical Study of Lawyers'Effects on Tax Court Litigation Outcomes, 41 WAKE FOREST L. REV. 1235, 1252-53 (2006) ("[A]s experts and repeat players in the court system, litigating attorneys should have .. . better access to information about what the .. .judge likely will do.").
338. For the origins of this functional argument, see Email from Stephen B. Burbank, Professor, University of Pennsylvania Law School, to author (Nov. 11, 2009, 14:52 EST) (on file with author).
339. Although any attempt to distinguish between legal conclusions and factual allegations superficially harkens back to code pleading, which has long been rejected, the gloss that follows does not resuscitate the hypertechnical distinctions of yore. Rather, it seeks to establish a uniquely low specificity threshold beyond which allegations are entitled to the presumption of truth for one particular subgroup of litigants whom courts have singled out for special treatment due to policy considerations. In that regard, it benefits from the work of a leading scholar during the code-pleading era and one of its strongest critics, Walter Wheeler Cook, who believed that factual specificity differentiates conclusions from allegations and that the required amount of specificity should comport with "notions of fairness and convenience."
340. Cook, supra note 210, at 422-23.
341. See Bone, supra note 100, at 867 n.94 (suggesting that one extreme way to narrow the class of excludable conclusions is to limit it to "allegations that simply insert 'plaintiff and 'defendant' into a legal proposition otherwise stated in some recognizably canonical form").
342. See id. at 873-74 (discussing objectively verifiable facts in the context of plausibility analysis). Drawing the line at objective verifiability comports with the previous acknowledgment that Form 11 should be sufficient to entitle pro se plaintiffs to discovery. It requires a plaintiff claiming basic negligence to state only, "On [X] date, at [X] place, the defendant negligently drove a motor vehicle against the plaintiff." FED. R. CIV. P. Form 11. Its use of the term "negligently," however, is not a legal conclusion that can be disregarded, but rather just a description of the defendant's driving, like "sporadic" or "substandard," which can be objectively verified through discovery.
343. See supra subsection II. B.3.a (discussing Form 11 as endorsing shorthand factual allegations) . Accordingly, similar descriptive terms that resemble legal conclusions should not be disregarded when liberally construing pro se complaints.
344. Cf. Bone, supra note 100, at 873-74 (explaining that some conclusory statements do provide the court with a sufficient basis to evaluate a claim's success under the plausibility standard).
345. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1959-60 (2009) (Souter, J., dissenting) (agreeing with the majority that, without the factual allegations disregarded as conclusory, the complaint failed to state a plausible claim to relief);
346. Bone, supra note 100, at 861-62 (noting that Iqbal's first prong "did all the work" by making it easy to conclude that the complaint did not raise a plausible inference of wrongdoing).
347. See Byron C Keeling, Toward a Balanced Approach to "Frivolous" Litigation: A Critical Review of Federal Rule 11 and State Sanctions Provisions, 21 PEPP. L. REV. 1067, 1142 (1994) ("[P]ro se litigants file a large proportion of the nut claims.").
348. See, e.g., Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) ("[A] pro se complaint. .. should not [be] dismiss [ed] without granting leave to amend at least once. ..." (internal quotation marks omitted) (emphasis added)).
349. See Richard Zorza, The Disconnect Between the Requirements of Judicial Neutrality and Those of the Appearance of Neutrality When Parties Appear Pro Se: Causes, Solutions, Recommendations, and Implications, 17 GEO. J. LEGAL ETHICS 423, 436-40 (2004) (discussing transparency as essential to providing pro se litigants meaningful judicial accommodations and noting that explanation is a "particularly important" component of that transparency).
350. For a fuller discussion of this type of unintentional decisionmaking confidence or "hubris,"
351. see supra subsection II.B.3.b.
352. A related approach would permit plaintiffs to conduct limited discovery to quell courts' skepticism as to plausibility.
353. See, e.g., Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effed of Iqbal on Civil Rights Cases, 14 LEWIS & CLARK L. REV. 65, 140 (2010) ("Where the complaint's implausibility is due to an informational inequity, an opportunity to re-plead does little good without some narrow discovery to ameliorate the problem."). Additional transparency would work well in conjunction with predismissal discovery because it would direct the discovery and thereby limit its cost.
354. See Kahan, Hoffman & Braman, supra note 182, at 897-99 (defining "judicial humility" as a way by which judges can prevent privileging value-laden perceptions over competing perceptions likely made by groups with different "identity-defining characteristics").
355. See id. at 898-99 (urging a process whereby judges reconsider their conclusions that no reasonable juror could find wrongdoing to make sure that they do not denigrate the views of particular communities that perceive facts differently).
356. For a compelling discussion of why "cause of action" information should not generate concerns over judicial partiality,
357. see Jona Goldschmidt, Judicial Assistance to Self-Represented Litigants: Lessons from the Canadian Experience, 17 MICH. ST. J. INT'L L. 601, 622-23 (2009).
358. See Ashcroft v. Iqbal, 129 S. Ct. 1937,1951-52 (2009) (noting that all the alleged nonconclusory facts can be read to suggest is that defendants placed plaintiff in restrictive confinement because he was a suspected terrorist, which does not plausibly suggest invidious discrimination).
359. For a similar suggestion that instructions to pro se litigants be included in orders granting leave to amend so that they can correct defects in their complaints,
360. see Zeigler & Hermann, supra note 64, at 211.
361. See supra Section III. A (articulating a functional argument for constraining judicial capacity to disregard "conclusory" allegations based upon Rules 1 and 8(e)).
362. See Bacharach & Entzeroth, supra note 7, at 42 ("The effort to equalize adversarial ability is a futile endeavor, but the hopelessness of the task is not the greatest danger. Instead, the greater danger is the loosening of the well-designed constraints on the role of the judiciary in the adversarial process.").
363. See id. at 43 ("The key to construction of pro se pleadings involves an understanding of what the litigant has said.").
364. See Hatamyar, supra note 15, at 613 ("Interestingly, the percentage of pro se plaintiffs .. . declined from Conley (30%) to Twombly (27%) to Iqbal (24%).").
365. See supra note 57 (examining the complexity of pro se suits and the burden they impose on courts).
366. Nichols, supra note 49, at 355 (quoting FED. R. CIV. P. 11). The 1983 revisions to Rule 11 eliminated unrepresented litigants' previous exemption from the Rule's reach.
367. Id. at 355-56. Now, "the rule unequivocably reaches the conduct of pro se litigants . .. [and] no federal court may claim that it is powerless to administer [R] ule 11 sanctions against unrepresented parties whose filings it finds to be frivolous-in-fact, frivolous-in-law, or improperly motivated."
368. Id. at 357;
369. see also FED. R. CIV. P. 11.