Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Civil Procedure

Cornell Law Faculty Publications

Series

2010

Pleading

Articles 1 - 1 of 1

Full-Text Articles in Law

Inventing Tests, Destabilizing Systems, Kevin M. Clermont, Stephen C. Yeazell Mar 2010

Inventing Tests, Destabilizing Systems, Kevin M. Clermont, Stephen C. Yeazell

Cornell Law Faculty Publications

The U.S. Supreme Court revolutionized the law on pleading by its suggestive Bell Atlantic Corp. v. Twombly and definitive Ashcroft v. Iqbal. But these decisions did more than redefine the pleading rules: by inventing a foggy test for the threshold stage of every lawsuit, they have destabilized the entire system of civil litigation. This destabilization should rekindle a wide conversation about fundamental choices made in designing our legal system.

Those choices are debatable. Thus, the bone this Article picks with the Court is not that it took the wrong path for pleading, but that it blazed a new and unclear …