Civil Procedure Commons^™

Iqbal, Twombly, And The Lessons Of The Celotex Trilogy, Hillel Y. Levin

Scholarly Works

This Essay compares the Twombly/Iqbal line of cases to the Celotex trilogy and suggests that developments since the latter offer lessons for the former. Some of the comparisons are obvious: decreased access and increased judicial discretion. However, one important similarity has not been well understood: that the driving force in both contexts has been the lower courts rather than the Supreme Court. Further, while we can expect additional access barriers to be erected in the future, our focus should be on lower courts, rather than other institutional players, as the likely source of those barriers.

Take Me Home To Conley V. Gibson, Country Roads: An Analysis Of The Effect Of Bell Atlantic Corp. V. Twombly And Ashcroft V. Iqbal On West Virginia's Pleading Doctrine, Devon J. Stewart

West Virginia Law Review

No abstract provided.

The Pleading Problem, Adam N. Steinman

Faculty Scholarship

Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This Article provides that theory. It develops a …

Pleading And Access To Civil Procedure: Historical And Comparative Reflections On Iqbal, A Day In Court And A Decision According To Law, James Maxeiner

All Faculty Scholarship

The Iqbal decision confirms the breakdown of contemporary American civil procedure. We know what civil procedure should do, and we know that our civil procedure is not doing it. Civil procedure should facilitate determining rights according to law. It should help courts and parties apply law to facts accurately, fairly, expeditiously and efficiently. This article reflects on three historic American system failures and reports a foreign success story.

Pleadings can help courts do what we know courts should do: decide case on the merits, accurately, fairly, expeditiously and efficiently. Pleadings facilitate a day in court when focused on deciding according …

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

Faculty Scholarship

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 …

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 …

Iqbal And The Slide Toward Restrictive Procedure, A. Benjamin Spencer

Scholarly Articles

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 judges …

It's The Law! Applying The Law Is The Missing Measure Of Civil Law / Common Law Convergence, James Maxeiner

All Faculty Scholarship

It’s the Law! The application of law to facts is a measure of convergence of common and civil law systems of civil procedure that is missing from our program. The previous session addressed “Getting Straight to the Facts” and “Getting Results.” Facts and results are fine, but what of the law and of its application? Should not applying law have pride of place in systems of civil justice? Should not it be the measure of convergence?

The measure of convergence that I propose is whether methods of applying law to facts are converging. Applying law to facts is the principal …

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

Faculty Scholarship

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 …

Iqbal And Empathy, Darrell A. H. Miller

Faculty Scholarship

This Essay argues that empathy does and should play an important, albeit limited role, in a judge’s decision making process. Specifically, empathy is essential for making correct, principled, and unbiased judgments, because empathy is one of the few means we have to understand human motivation. Empathy is a crucial cognitive mechanism that can help compensate for common cognitive bias. As such, empathy, appropriately restricted, should be an accepted and meaningful tool for judges to use in evaluating the sufficiency of complaints, especially as they relate to Iqbal’s plausibility pleading standard.

Understanding Pleading Doctrine, A. Benjamin Spencer

Michigan Law Review

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief' by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …

There's A Pennoyer In My Foyer: Civil Procedure According To Dr. Seuss, Elizabeth Chamblee Burch

Scholarly Works

This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, and joinder.

Understanding Pleading Doctrine, A. Benjamin Spencer

Scholarly Articles

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has been illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …

Balancing The Pleading Equation, Paul Stancil

Faculty Scholarship

Pleading standards present a tale of two asymmetries. The first is informational: Plaintiffs don't know as much as defendants about defendants' alleged wrongful behavior. Given that, a liberal pleading standard may be sensible; overly demanding pleading standards may ultimately deny justice to worthy plaintiffs who cannot know critical details of their claims before filing.

But informational asymmetry is sometimes counterbalanced by a competing cost asymmetry. In certain circumstances, the cost of litigation is radically different for plaintiffs and defendants. The primary driver of this disparity is liberal discovery; in certain kinds of cases - consumer antitrust cases, for example: defendants' …

A "Plausible" Showing After Bell Atlantic Corp. V. Twombly, Charles B. Campbell

Nevada Law Journal

No abstract provided.

Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer

Scholarly Articles

Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous no set of facts formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts that choose to continue to apply …

Legal Indeterminacy Made In America: American Legal Methods And The Rule Of Law, James Maxeiner

All Faculty Scholarship

The thesis of this Article is that the indeterminacy that plagues American law is "Made in America." It is not inherent in law. Rather, it is a product of specific choices of legal methods and of legal structures made in the American legal system.

Integrating Racial Justice Into The Civil Procedure Survey Course, Kevin R. Johnson

Journal of Legal Education

No abstract provided.

Recent Developments In Federal Jurisdiction And Pleading, Wendy Collins Perdue

Law Faculty Publications

Recent developments in federal jurisdiction and pleading including subject matter jurisdiction, personal jurisdiction and notice, venue, forum non conveniens, forum selection clauses, and pleading.

Pleading Rules In Antitrust Cases: A Return To Fact Pleading?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The Federal Rules of Civil Procedure, adopted in 1938, introduced a simplified pleading regimen for litigation in the federal courts. Commonly referred to as notice pleading, this new pleading regimen was designed to shift the courts' attention away from the pleadings and toward proof at trial. Under the simplified pleading standards adopted by the Federal Rules, the complaint need not contain a ritualistic recitation of elements of an abstruse theory of recovery, as required at common law; nor did it need to detail "facts" sufficient to make out a "cause of action," as required under the old scheme of …

Functions Of Rule 12(B)(6) In The Federal Rules Of Civil Procedure: A Categorization Approach, Yoichiro Hamabe

Campbell Law Review

The purpose of this article is to clarify the function of Rule 12(b)(6) under liberalized pleading. To achieve this clarification, this article examines the functions of Rule 12(b)(6) by using a categorization approach. Before entering the categorization, the previous controversies over the two opposing directions should be also considered. Accordingly, the functions of Rule 12(b)(6) were researched by reviewing several fundamental questions concerning this obscure Rule.

Application Of Rule 11 In The Fourth Circuit

Washington and Lee Law Review

No abstract provided.

Eighteen Feet Of Clay: Thoughts On Phantom Rule 4(M), Gene R. Shreve

Indiana Law Journal

No abstract provided.

A Distorted Mirror: The Supreme Court's Shimmering View Of Summary Judgment, Directed Verdict, And The Value Of Adjudication, Jeffrey W. Stempel

Scholarly Works

As almost anyone alive during the past decade knows, this is the era of the ‘litigation explosion,’ or there is at least the perception that a litigation explosion exists. Although all agree that the absolute number of lawsuits has increased in virtually every corner of the state and federal court systems, there exists vigorous debate about whether the increase is unusual in relative or historical terms and even more vigorous debate about whether the absolute increase in cases symbolizes the American concern for fairness and justice or represents a surge in frivolous or trivial disputes needlessly clogging the courts. As …

The Use Of Comparative Law In Teaching American Civil Procedure, Sidney B. Jacoby

Cleveland State Law Review

The use of comparative law can enhance the teaching of American civil procedure, especially by a comparison of foreign form book material with American forms. In this way, with some basic knowledge of comparative civil procedure, the student will better appreciate our own concepts and will also understand some fundamental principles of the civil procedure of civil law countries when he is confronted with them in private practice

Practice And Pleading (15th Annual Survey Of Virginia Law), W. Taylor Reveley Iii

Faculty Publications

After quickly outlining recent, legislation in the field of practice and pleading, this Article proceeds to a more detailed treatment of pertinent judicial developments. Several of the Supreme Court of Appeals' decisions merit close attention, principally Rakes v. Fulcher and Sullivan v. Little Hunting' Park, Inc. Recurrent in the discussion of the judicial opinions is concern not only with the announced law, but also with the manner of the announcement-concern, that is, with both the legal results and the legal craftsmanship. Organizationally, an attempt has been made to discuss the judicial material at the time of its "moment of truth" …

Pleading--Alternative Methods Of Changing Theory Of Action On Appeal, Fred L. Fox Ii

West Virginia Law Review

No abstract provided.

Book Reviews, Hans W. Baade, C. Wilfred Jenks, Ronan E. Degnan, Clarence Clyde Ferguson Jr,, James F. Hogg, Roscoe Cross, Roscoe C. Martin, Roscoe L. Barrow, Melvin G. Dakin

Journal of Legal Education

No abstract provided.

Procedural Problems Of Class Suits, Joseph J. Simeone

Michigan Law Review

The purpose of this article is to discuss numerous aspects of the class device, to discuss the many procedural problems confronting court and counsel, to determine the effectiveness of one type of class suit-the spurious-and in the conclusion, to propose legislation for a new rule independent of the rules regarding class actions, a remedy which would more effectively permit the dispatch of numerous claims arising from similar fact patterns.

The Union Of Law And Equity, Charles W. Joiner, Ray A. Geddes

Michigan Law Review

This paper was prepared for the guidance of a Committee on Michigan Procedural Revision jointly created by the Michigan Legislature, the Supreme Court of Michigan, and the Michigan State Bar to recommend revision of Michigan statutes and rules. Toe need for the joinder of law and equity procedure was thought to be so fundamental that this paper was prepared as a basic study for the committee. In it an attempt is made to bring to the attention of the Michigan lawyers, judges, and legislators an analysis of the Michigan Constitution, statutes, and cases and the experience of other states that …