Law Commons^™

The Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, Celeste Anquonette Ajayi

Washington Law Review

Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as “Twiqbal,” plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims.

The current heightened pleading standard …

The Parable Of The Forms, Samuel L. Bray

St. John's Law Review

(Excerpt)

It might be good for each department to have its own form, or it might be better to have one form for the whole campus. That is an open question. It depends on how different the repair requests are in different departments, and on the value of specialization. It depends on whether we want some complexity about the choice of forms or if we want radical simplicity about the number of forms, with all of the complexity residing within a single form.

So, too, it might be good to have different forms of action. That way, everyone knows upfront …

The Parable Of The Forms, Samuel L. Bray

Journal Articles

This is a parable about the forms of action, code pleading, and the "civil action" of the Federal Rules.

A Plan For Reforming Federal Pleading, Discovery, And Pretrial Merits Review, David Rosenberg, Anne Brown, Jaehyun Oh, Benjamin Taylor

Vanderbilt Law Review

We propose a fundamental restructuring of the federal civil pretrial process to address its great expense and unreliability in resolving cases on their merits-problems largely attributable to discovery. The proposed reforms establish an affirmative-disclosure mandate that sharply reduces the role of discovery by transferring most of the parties' burden of fully revealing discoverable matter, favorable and unfavorable, to their pleadings. To effectuate the new function for pleadings, the reformed process replaces Rules 12(b)(6), (c), and (f) with pretrial merits review conducted exclusively pursuant to the procedures and standards for summary judgment under Rule 56. Responding parties will be required to …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Nancy Welsh

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Pleading, For The Future: Conversations After Iqbal, Lee H. Rosenthal

Dickinson Law Review (2017-Present)

No abstract provided.

If It (Ain’T) Broke, Don’T Fix It: Twombly, Iqbal, Rule 84, And The Forms, Justin Olson

Seattle University Law Review

The past decade has not been kind to the Federal Rules of Civil Procedure (the Rules). From the growth of summary judgment as a mechanism to let judges instead of juries determine facts, to the love–hate relationship with class actions, judicial interpretations of the Rules have revealed a trend toward complicating the ability of plaintiffs to find redress for their claims. Nowhere is this more apparent than in the shifting standards of pleading requirements under Rule 8. Much has been written by academics and practitioners alike regarding the ripples caused by Twombly and Iqbal. Although the Court would like to …

Trying The Trial, Andrew S. Pollis

Faculty Publications

Lawyers routinely make strategic advocacy choices that reflect directly, if inferentially, on the credibility of their clients’ claims and defenses. But courts have historically been reluctant to admit evidence of litigation conduct, sometimes even expressing hostility at the very notion of doing so. This Article deconstructs that reluctance. It argues not only that litigation conduct has probative value, but also that there is social utility in subjecting lawyer behavior to juror scrutiny.

Material Facts In The Debate Over Twombly And Iqbal, Jonah B. Gelbach

All Faculty Scholarship

This paper presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions from nearly 2,000 randomly selected employment discrimination and contracts cases to try to assess Twombly and Iqbal’s performance in filtering cases according to merit. I first explain how such data might be helpful in such an assessment, taking into account the possibility that parties’ behavior might have changed following Twombly and Iqbal.

I then report results indicating that even using this large collection of data -- the most comprehensive data assembled to date to address this question -- we cannot tell whether “TwIqbal” …

Reconstructing Pleading: Twombly, Iqbal, And The Limited Role Of The Plausibility Inquiry, Stephen R. Brown

Akron Law Review

Although critics have generally failed to appreciate the limited role of the plausibility inquiry, it is still necessary in some cases. I will therefore, in the discussion of plausibility within the three-step framework, provide a general defense of Twombly and Iqbal by recasting the decisions in light of a plaintiff‘s burden to certify to a court that the factual contentions in a complaint ―will likely have evidentiary support under Rule 11. Under this view of the plausibility inquiry, a court acts as a neutral third-party that simply evaluates a plaintiff‘s ability to predict her own likelihood of success. Instead, a …

Summary Judgment, Pleading, And The Future Of Transsubstantive Procedure, Stephen B. Burbank

Akron Law Review

David Berger Professor for the Administration of Justice, University of Pennsylvania Law School. This article is based on remarks made at the 2010 meeting of the AALS Section on Litigation.

Diverging Paths: The Minnesota Supreme Court’S Decision To Reject The “Plausibility” Pleading Standard In Walsh V. U.S. Bank, Michael Sheran

William Mitchell Law Review

No abstract provided.

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

Kevin M. Clermont

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 …

The Fourth Era Of American Civil Procedure, Thomas O. Main, Stephen N. Subrin

Scholarly Works

Every contemporary American lawyer who has engaged in litigation is familiar with the now fifty-four-volume treatise, Federal Practice and Procedure. Both of that treatise’s named authors, Charles Alan Wright and Arthur Miller, have mourned the death of a Federal Rules regime that they spent much of their professional lives explaining and often celebrating. Wright shared a sense of gloom about federal procedure that he compared to the setting before World War I. Miller has also published a series of articles that chronicled his grief.

We agree that something has fundamentally changed. In fact, we believe that we are in …

Mapping Supreme Court Doctrine: Civil Pleading, Scott Dodson, Colin Starger

Scott Dodson

This essay, adapted from the video presentation available at http://vimeo.com/89845875, graphically depicts the genealogy and evolution of federal civil pleading standards in U.S. Supreme Court opinions over time. We show that the standard narrative—of a decline in pleading liberality from Conley to Twombly to Iqbal—is complicated by both progenitors and progeny. We therefore offer a fuller picture of the doctrine of Rule 8 pleading that ought to be of use to judges and practitioners in federal court. We also hope to introduce a new visual format for academic scholarship that capitalizes on the virtues of narration, graphics, mapping, online accessibility, …

Election Law Pleading, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article explores how the Supreme Court’s recent pleading decisions in Twombly and Iqbal have impacted election litigation. It explains how Twombly and Iqbal’s “factual plausibility” standard usually does not help in an election case, because there is often little factual dispute regarding the operation of the election practice. Instead, the real question in a motion to dismiss is whether the plaintiff has stated a viable cause of action against the government defendant who is administering the election. But Twombly and Iqbal’s rule does not assist in answering this question. That is, Twombly and Iqbal are incongruent with …

Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew J.B. Lawrence

Faculty Scholarly Works

Policymakers from Senator Edward Kennedy to Civil Rules Advisory Committee Reporter Edward Cooper have proposed that class actions be subject to a more stringent pleading threshold than individually-filed suits, yet the question has not been fully explored in legal scholarship. This Article addresses that gap. It shows that courts following the guidance of Bell Atlantic v. Twombly should apply a relatively more stringent pleading threshold to class actions, and a relatively less stringent threshold to individually-filed suits.

This contribution is set forth in two steps. First, this Article explains that, all else being equal, the anticipated systems’ costs and benefits …

The Odd State Of Twiqbal Plausibility In Pleading Affirmative Defenses , William M. Janssen

Washington and Lee Law Review

No abstract provided.

Twombly Is The Logical Extension Of The Mathews V. Eldridge Test To Discovery, Andrew Blair-Stanek

Andrew Blair-Stanek

The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both practitioners and scholars, casting aside the well-settled rule for evaluating motions to dismiss in favor of an amorphous “plausibility” standard. This Article argues that Twombly was not revolutionary but simply part of the Court’s ever-expanding application of the familiar three-factor Mathews v. Eldridge test. Misused discovery can deprive litigants of property and liberty interests, and in some cases Mathews requires the safeguard of dismissing the complaint. This Article’s insight explains Twombly’s origins and structure, while also suggesting a source for lower courts to draw …

Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew Lawrence

Matthew B. Lawrence

Determining The Proper Pleading Standard Under The Private Securities Litigation Reform Act Of 1995 After In Re Silicon Graphics , Erin Brady

Pepperdine Law Review

No abstract provided.

The Twombly Revolution?, Douglas G.. Smith

Pepperdine Law Review

In Bell Atlantic Corp. v. Twombly, the Supreme Court issued a decision that has been described as nothing less than "startling". In a 7-2 decision, the Court provided an interpretation of the Federal Rules of Civil Procedure that has significantly increased the level of scrutiny that federal courts must apply in determining the sufficiency of the pleadings. While some have characterized the Court's decision as "vague" or poorly-reasoned, this article defends the Twombly decision as both a correct and welcome development in the law regarding the appropriate pleading standard under Rule 8(a). The article argues that the Court's decision is …

In Defense Of Plausibility: Ashcroft V. Iqbal And What The Plausibility Standard Really Means , Daniel W. Robertson

Pepperdine Law Review

No abstract provided.

The Rise Of The Common Law Of Federal Pleading: Iqbal, Twombly, And The Application Of Judicial Experience, Henry S. Noyes

Villanova Law Review

SINCE 1938, Rule 8(a) of the Federal Rules of Civil Procedure (Federal Rules or Rules) has set the standard for how much a plaintiff must allege at the outset of a lawsuit in order to avoid dismissal for failure to state a claim. Rule 8 requires that a plaintiff must include in the complaint "a short and plain statement of the claim showing that the pleader is entitled to relief." Federal courts developed a well-settled set of principles to apply when deciding whether to dismiss a claim. Among these principles are the following: (1) the plaintiffs factual allegations are accepted …

King Arthur Confronts Twiqy Pleading, Edward H. Cooper

Articles

Rule 25 of the 1912 Equity Rules stated that "it shall be sufficient that a bill in equity shall contain ... a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence." Not mere conclusions, not evidence, but "ultimate facts." And, at that, not facts "constituting the cause of action." The bare words of Rule 25 could mean something quite different to a twenty-first-century audience than they meant to a twentieth-century audience. But they may serve as a foil to the challenge framed by the Supreme Court in Bell Atlantic …

Civil Practice And Procedure, John R. Walk, Andrew P. Sherrod

University of Richmond Law Review

This article surveys recent significant developments in Virginia civil practice and procedure. Specifically, the article discusses opinions of the Supreme Court of Virginia from June 2010through June 2011 addressing civil procedure topics; significant amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period; and legislation enacted by the Virginia General Assembly during its 2011 session that relates to civil practice.

Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong

Faculty Publications

This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.

Grossly Restricted Pleading: Twombly/Iqbal, Gross And Cannibalistic Facts In Compound Employment Discrimination Claims, Brian S. Clarke

Brian S. Clarke

Beginning in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and concluding with Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009), the Supreme Court redefined the requirements of notice pleading under Fed. R. Civ. Proc. 8(a)(2) and the standard of review on motions to dismiss under F. R. Civ. Proc. 12(b)(6). Just one month after Iqbal, the Supreme Court decided Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (U.S. 2009). In Gross, which involved a claim for age discrimination under the Age Discrimination in Employment Act (the “ADEA”), the Court held that an ADEA claim required …

The Rise Of The Common Law Of Federal Pleading: Iqbal, Twombly And The Application Of Judicial Experience, Henry S. Noyes

Henry S. Noyes

With its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief...will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand …

Civil Practice And Procedure, John R. Walk, Andrew P. Sherrod

University of Richmond Law Review

This article surveys recent significant developments in Virginia civil practice and procedure. Specifically, the article discusses opinions of the Supreme Court of Virginia from June 2009 through April 2010 addressing civil procedure; significant amendments to the Rules of the Supreme Court of Virginia made during the same period; and legislation enacted by the Virginia GeneralAssembly during its 2010 session relating to civil practice.