In the legal bogs of the United States, judges and lawyers really are speaking of little besides Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the two recent cases in which the U.S. Supreme Court revolutionized the law on pleading. Academics too seem obsessed.
Together with Professor Stephen Yeazell, I have already written about the three destabilizing attributes of Twombly and Iqbal: their doctrine is thoroughly novel, quite uncertain, and shakily resting on a foundation laid by a faulty legal process. We fervently criticized the cases on those grounds, even though we were, and remain, agnostic on the question of whether notice pleading needs to be tightened. But the time for shock-and-awe commentary has passed. The time has come to think about moving forward. How will the new regime work?
One cannot figure out precisely what the two founding cases mean without ascertaining what they do not mean. Although I shall begin by provisionally summarizing the regime that the cases seemed to establish, I shall quickly shift to the necessary task of brush-clearing. I shall do that by refuting the three major myths that have arisen from misreadings of the two cases now seemingly prevalent in case and commentary.
By way of prologue, then, it was a deeply worrying supposition about meritless claims inundating the courts and inflicting discovery burdens that pushed the Justices into action. Twombly and Iqbal added a pleading requirement for claimants that goes beyond having to give notice. Invoking Federal Rule of Civil Procedure 8(a)(2)’s “short and plain statement of the claim showing that the pleader is entitled to relief,” the Court imposed on the plaintiff the burden of establishing, by nonconclusory allegations, the complaint’s plausibility as to liability on the merits. Thus the Court, by case decision rather than by rulemaking, blazed a new and unclear path for all civil cases heard in federal court. Much remains cloudy, but it now appears that pleading should work in the following way.
First, upon a challenge to legal sufficiency, the judge should proceed in the traditional way for a demurrer by asking whether any legal claim exists that would be consistent with the words of the complaint—that is, the complaint must encompass a legal claim without including allegations that would defeat it. Henceforth, however, the plaintiff must do more to identify the complaint’s legal theories, as a practical matter, because the plaintiff must be specific enough for the judge to weigh the complaint’s factual sufficiency under the next test.
Second, to satisfy the factual-sufficiency test, the plaintiff must plead facts and perhaps some evidence. The plaintiff should give a particularized mention of the factual circumstances of each element of the causes of action. The degree of particularization should be sufficient to make plausible an inference of liability, with the judge testing the plausibility not of each fact but only of the moving defendant’s ultimate liability on the particular cause. The judge performs the decisional task (1) by ignoring any conclusory allegation, such as a bald assertion that an element exists, and (2) after accepting the remaining allegations as true, by weighing the plausibility of the liability inference in light of his or her judicial experience and common sense as applied in the case’s particular context. This new approach will most seriously impact the plaintiff who needs discovery to learn the required factual particulars.
This simple summary has not, however, captured the minds of the citizenry. Instead, three widely prevailing myths lead to mistaken views that can seriously overstate or understate the cases’ significance. Each of the myths builds on its own faulty premise, as I shall now try to show.
