Academic round-up

By Amanda Frost
on Aug 11, 2010 at 1:43 pm

Academics have written extensively on the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.  The cases appeared to replace the so-called “notice pleading” standard with the requirement that claims in pleadings survive review for “plausibility”—an arguably higher hurdle.  These decisions did not claim to be radically altering the pleading standards, however, leaving observers unclear as to their significance.  A number of recent articles have grappled with the problem, reaching varied conclusions about the impact of these cases and the direction the Court will take this issue in the future.  I have summarized a few to give readers a flavor of the debate.

Many academics are critical of the decisions, worrying that plaintiffs in meritorious cases will not be able to muster the evidence needed to satisfy the higher pleading standard without the benefit of discovery – which of course they cannot get should a motion to dismiss be successful.  In an article in the Michigan Law Review, Professor Scott Dodson acknowledges that problem and argues that the solution is to permit limited pre-dismissal discovery to give plaintiffs an opportunity to gather the facts necessary to meet the plausibility standard.  Professor Robert Bone likewise contends that the change in pleading standards will “aggressively” screen out some meritorious cases, and thus he concludes that it should have been made through Rules Enabling Act process or by Congress rather than by the Court acting alone.   

Some academics assert that the decisions are in line with past practice, however.  For example, in an article entitled Taming Twombly, Even after Iqbal, Professor Edward Hartnett argues that Twombly is not a radical departure from the notice pleading standard and its holding can be reconciled with existing precedent and practice.  Professor Adam Steinman reaches the same conclusion in his article The Pleading Problem, published in the Stanford Law Review.  Professors Martin Redish and Lee Epstein contend that Twombly and Iqbal simply reaffirm what “notice pleading” was always intended to be.  Redish and Epstein assert that the decisions strike an “appropriate balance” between two extreme positions, in that they prevent plaintiffs from obtaining discovery on nothing more than “conclusory assertions of liability,” while allowing claims to go forward when the complaint gives rise to “suspect circumstances.”

Several law reviews have sponsored symposia on the cases.  The Lewis & Clark Law Review was one of the first to publish a series of articles addressing their impact.  The Penn State Law Review held a symposium on March 26, 2010 addressing Iqbal’s effect on the role of the courts generally, and cases raising constitutional torts more specifically.

Finally, Professor Patricia Hatamyar conducted one of the first empirical studies of Twombly and Iqbal’s influence, finding that these decisions have produced a “noticeable increase in the granting of 12(b)(6) motions by district courts.”  Her analysis of 1,039 cases found 46% of such motions were granted pre-Twombly, while 56% of such motions are granted after Iqbal.