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Pleading Conditions Of The Mind Under Rule 9(B): Repairing The Damage Wrought By Iqbal, A. Benjamin Spencer
Pleading Conditions Of The Mind Under Rule 9(B): Repairing The Damage Wrought By Iqbal, A. Benjamin Spencer
Faculty Publications
In 2009, the Supreme Court decided Ashcroft v. Iqbal, in which it pronounced-among other things- that the second sentence of Rule 9(b) of the Federal Rules of Civil Procedure-which permits allegations of malice, intent, knowledge, and other conditions of the mind to be alleged "generally" -requires adherence to the plausibility pleading· standard it had devised for Rule 8(a)(2) in Bell Atlantic Corp. v. Twombly. That is, to plead such allegations sufficiently, one must offer sufficient facts to render the condition-of-the-mind allegation plausible. This rewriting of the standard imposed by Rule 9(b)'s second sentence-which came only veritable moments after the Court …
Pleading And Access To Civil Justice: A Response To Twiqbal Apologists, A. Benjamin Spencer
Pleading And Access To Civil Justice: A Response To Twiqbal Apologists, A. Benjamin Spencer
Faculty Publications
Professor Stephen Yeazell once wrote, ''A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions."" One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious claims that fail to offer sufficient specificity and support at the pleading stage. But some have questioned whether this purported threat is more perceived than real. Indeed, this doctrinal shift has been defended in several ways …
Iqbal And The Slide Toward Restrictive Procedure, A. Benjamin Spencer
Iqbal And The Slide Toward Restrictive Procedure, A. Benjamin Spencer
Faculty Publications
Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscores the substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal 's factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits …