Rational Pleading in the Modern World of Civil Litigation: The Lessons and Public Policy Benefits of Twombly and Iqbal
Schwartz, Victor E., Appel, Christopher E., Harvard Journal of Law & Public Policy
INTRODUCTION I. THE RISE AND FALL OF NOTICE PLEADING A. The Development of Basic Pleading Standards 1. Common Law Pleading 2. Code Pleading 3. Notice Pleading B. The Twombly and Iqbal Decisions II. PLAUSIBLE PLEADINGS LINE DRAWING A. Complex Cases Should Require More Refined Pleadings 1. Specific Pleadings Are Appropriate When More Than Just Facts Are at Issue 2. Anticipated Discovery Burdens Should Factor Into the Required Sufficiency of a Pleading B. Certain Types of Claims Should Require More Exacting Pleadings 1. Novel or Untested Claims Should Require More Specific Pleadings 2. Allegations of Intentional Conduct Should Be Supported By Specific Facts III. PUBLIC POLICY FAVORS GREATER JUDICIAL REVIEW OF PLEADINGS A. Judges' Gatekeeping Role B. A Response to Critics C. Lessons for State Courts CONCLUSION
The past few years have introduced some exciting, indeed revolutionary, changes to the world of pleading. (1) In what is traditionally a static topic of civil procedure, often viewed as an afterthought by all but first year law students, federal pleading requirements have received a modern-day makeover by the United States Supreme Court in two key decisions, Bell Atlantic Corp. v. Twombly (2) and Ashcroft v. Iqbal. (3) With these rulings, the Court signaled a decisive break from the broad "notice pleading" standard (4) that evolved out of the Federal Rules of Civil Procedure and became absorbed into many states' analogous pleading rules. (5) In its place, the Court has ushered in the era of so-called "plausibility pleading," (6) which represents a more exacting standard, yet one that has resulted in significant confusion as lower courts attempt to decipher its meaning and impact. (7)
Although the contours of Twombly and Iqbal may not yet be fully understood, the Supreme Court's purpose in developing a more careful judicial review of pleadings was clear: More thorough review is necessary to protect against frivolous and purely speculative lawsuits. (8) Such cases take a considerable toll on the judicial system, wasting scarce judicial resources, delaying justice for meritorious cases, and burdening defendants with "sprawling, costly, and hugely time-consuming" discovery. (9) As the Court stated in Twombly, this mere "threat of discovery expense will push cost-conscious defendants to settle even anemic cases" during the pretrial stage. (10) Of equal importance to the Court's reasoning is that the lack of sufficient pleadings review has created an incentive for discovery "fishing expeditions," (11) whereby claims are initiated with the primary objective of obtaining discovery to find support to file other lawsuits. The purpose of these lawsuits is not to win and secure a client recovery, but rather to provide information to spawn other lawsuits, which can similarly be used to leverage settlement.
As the Supreme Court further appreciated in recalibrating federal pleading requirements, the harmful effects of marginal litigation are often compounded in the modern world of civil litigation. The concept of notice pleading developed in the 1930s as a reaction to arcane common law pleading rules and rigid code pleading. (12) Civil litigation at the time involved relatively simple and straightforward matters, (13) and most modern forms of complex litigation, such as regulatory actions or products liability suits regarding warnings and design, either were substantially limited in scope and sophistication or did not yet exist. (14) Concepts such as e-discovery, which alone can cost litigants millions of dollars, were not yet even in the realm of science fiction.
It is in this context that this Article analyzes the public policy of Twombly and Iqbal, and offers neutral principles for how both federal and state courts might interpret the Supreme Court's new, and admittedly vague, standard. …