Monday, October 12, 2009

A Twombly Of Scholarship

A flock of birds. A dazzle of zebra. A pod of hippos. (As one of our daughters said, many years ago, "A psycho of Moms.")

Why not a Twombly of scholarship?

(Well, okay, it's not quite as good as blogolater -- but the hour is late, and we're tired.)

Here are some recent scholarly publications focused on the new pleading standards articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).

Professor Robert Bone, of Boston University School of Law, offers "Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal" (SSRN link here). Professor Bone thinks that Iqbal "takes Twombly’s plausibility standard in a new and ultimately ill-advised direction . . . . Moreover, the Supreme Court is not institutionally well-equipped to decide whether strict pleading is desirable, especially when it implements a thick screening model. Those decisions should be made through the formal Rules Enabling Act process or by Congress."

Unlike Professor Bone, who affirmatively dislikes Iqbal, Professor Ed Hartnett of Seton Hall emphasizes in "Taming Twombly" (SSRN link here) "Twombly’s connection to prior law and suggests ways in which it can be tamed." In the words of the abstract:

"First, the plausibility standard of Twombly can be understood as equivalent to the traditional insistence that a factual inference be reasonable. Second, the Twombly framework can be treated as an invitation to present information and argument designed to dislodge a judge’s baseline assumptions about what is natural. Third, and despite widespread assumption to the contrary, discovery can proceed during the pendency of a Twombly motion. This paper also suggests that the traditional practice of pleading 'on information and belief' be retired, and connects a tamed Twombly to broader trends toward managerial and discretionary judging."

(We speculate, however, that the battle over whether discovery can proceed during the pendency of a Twombly motion is likely to be more hotly debated than Professor Hartnett's abstract suggests.)

Professor Adam Steinman, of the University of Cincinnati, proposes a solution to the Twombly "problem" [what problem?] in "The Pleading Problem" (link here):

"Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) 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 new paradigm - plain pleading - as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference. Moreover, it is able to reconcile Twombly and Iqbal with pre-Twombly authority."

Finally, oral scholarship: Penn State, Dickinson School of Law, will be hosting a symposium about Iqbal on March 26, 2010. Here's a description of the symposium, courtesy of the Civil Procedure & Federal Courts Blog, which alerted us to the event.

Our own view, as we've frequently expressed, is that there's nothing radical about requiring a plaintiff to have sufficient facts to plead a prima facie case before the courts will entertain the lawsuit - and that goes for all forms of litigation. It's simply a construction of the language of Rule 8 "short and plain statement" that emphasizes "statement" a little more and "short" a little less. It's about time, we think, that the courts adopt a construction of the Rules that favors reduced, rather than expanded, litigation. Litigation is expensive, after all, especially discovery. More should be required to set this machine in motion than the rote and fact-free pleading of the elements of any given cause of action.

We can understand why the plaintiffs' lawyers would be outraged by this. After all, increased litigation is their stock in trade, and a litigation restrictive rule takes money directly out of their pockets.

The academic reaction we find more puzzling. Were we Marxists (we aren't, but sometimes thinking like economic determinists is enlightening), though, we would ascribe it to the dialectic. Less litigation means less demand for lawyers. Less demand for lawyers means less demand for law schools to train them. Less demand for law schools means less demand for law professors. Ergo the class interests of law professors would favor anything that increases the volume of litigation. Which, in turn, creates a contradiction with the interests of just about everyone in the non-legal sector of society.

Power to the people!

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