Beyond Twombly (by Prof. Scott Dodson)

Today, the Supreme Court decided Ashcroft v. Iqbal,a case that continues the recent evolution of pleading standards underRule 8 mostly begun by a case from two years ago, Bell Atlantic v. Twombly.  As I have written previously here,here,here,here,and here,Twombly affirmed, for the first time, lower court attempts to impose somethingmore than mere notice pleading to a claim governed by Rule 8.  The Supreme Court’s opinion in Twombly wasnot a model of clarity, however, with Courts of Appeals taking divergent viewsof the proper pleading standard in its wake.

We at least can applaud Iqbal for clarifying matters.  Twombly’s “plausibility” standard is clearlynow a uniform Rule 8 standard, not a standard borne of antitrust law orreserved for certain claims, as some had argued.  And, it is clear that, as I argue in thisarticle forthcoming in the University of Pennsylvania Law Review,the plausibility standard is a “factual sufficiency” standard that depends uponthe factual detail and content alleged. 

But,in my view, reaffirming Rule 8’s transsubstantivity with the restrictivepleadings standard of Twombly continues to move pleadings in the wrongdirection.  There may be good reasons todepart from transsubstantivity to accommodate the challenges and complexitiesof particular types of claims.  (Formore, see Professor Burbank’s thoughts in this recent article.)  There may also be good reasons to adhere to aliberal pleading standard applied transsubstantively.  (For more, see Professor Spencer’s thoughtsin this recent article.)  But applying a restrictive pleading standardtranssubstantively will surely result in fewer meritorious cases filed, moremeritorious cases dismissed, and less unlawful conduct redressed, particularlyfor cases in which a less restrictive standard could achieve a better balancebetween efficiency and justice.  

In addition,Iqbal reintroduces distinctions between conclusions of law, ultimate facts, andevidentiary facts that Rule 8 was designed to obliterate.  The Court casts the distinction betweenultimate facts and evidentiary facts in different terminology, namely “conclusory”and “nonconclusory” (or, perhaps, “well-pleaded”), but the inadequacyremains.  As Justice Souter points out indissent, the distinction between “conclusory” and “nonconclusory” factualallegations is difficult at best and may be fallacious.  

Iqbal may be most remarkable for what it didnot say.  It did not cite to Erickson v.Pardus, a per curiam decision issued two weeks after Twombly that many (thoughnot I )thought might temper Twombly’s reach.  Itdid not cite to Swierkiewicz v. Sorema N.A,a discrimination case that may now be effectively overruled.  It did not explain how Form 11’sassertion of “negligently drove” is both nonconclusory and plausible.  And it made no mention of notice.  I think it is fair to say that we haveentered a new era in pleadings.  Noticeis now an aside, probably insignificant in most cases.  Instead, pleadings litigation will focus onfactual sufficiency.  As I think theCourt made clear, that inquiry will turn on whether each factual allegation is“conclusory” or not and whether all of the nonconclusory allegations state aclaim that is “plausible.”