Pleading and the evolution of federal court litigation

Some random thoughts on Iqbal and its future effects, particularly in light of the very interesting exchange that has attended this post.

First, over the weekend I finally read Richard Epstein's paper on Twombly from last spring, which was coincidental to Iqbal being released Monday. Epstein places Twombly (and we now can do the same with Iqbal) in the broader context of the evolution of federal litigation since 1938, noting the types of litigation that predominated in 1938 and the changes to litigation that have accompanied the expansion of substantive federal law.

The drafters of the original Federal Rules in 1938 primarily thought in terms of patent claims and straight-forward tort, debt, and contract actions. The sort of conclusory skeletal pleading allowed under Rule 8 (and Conley) made sense for simple claims involving one-time conduct and facts that the plaintiff likely knew (or could know) at the outset--what happened at the intersection, whether or not the debt was repaid, whether the patent was valid. Modern litigation involves more complex actions under federal antitrust, securities, and civil rights laws. Epstein argues that skeletal conclusory pleading makes less sense in these more complex modern cases--involving conduct occurring over a longer period, complex conduct that is as likely to be lawful as unlawful, and often turning on the defendant's state of mind. Skeletal pleading in these cases presents a greater risk of hindering socially beneficial conduct by tying people and entities up in burdensome and expensive discovery and litigation that ultimately will (or should) be unsuccessful.

The problem is that, from the plaintiff's standpoint, skeletal, conclusory pleading is more necessary in modern litigation because the information needed to plead essential factual details (such as state of mind or what happened in a secret closed-door meeting) is not available at the outset and may only be obtained through discovery once litigation has begun. Twombly and Iqbal both demonstrate: How can a plaintiff know whether there was a secret meeting and agreement among the telephone companies or what the AG was thinking when he approved a policy of detaining, in special conditions, Arab Muslims in the weeks after 9/11. The best he can do at this stage is a conclusory allegation. Tightening pleading keeps potentially meritorious claims out of court, in turn reducing the ability to identify and hold wrongdoers to account and to make injured persons whole.

Second and somewhat related is Bruce Boyden's argument in the earlier Comments that the Court's view of pleading in Twombly and Iqbal was "warped by concern in those cases about particularly onerous costs and burdens of discovery based on what seem to the majority to be far-fetched and meritless allegations." Both were unique "modern" cases, large in size and scope, precisely the kind that Epstein (and the Court, obviously) believe are too big and sprawling for notice pleading. But, he says, perhaps lower courts will be a bit more measured in "normal" litigation when it comes to allegations of state of mind and other "on information and belief" pleading.

Unfortunately, I think lower courts are more likely to run with the greater power to review and rethink facts as alleged. On this point, I would recommend Benjamin Spencer's recent paper (forthcoming in Mich. L. Rev.) in which he tries to construct a model to describe what pleading now requires, based on what lower courts had been doing with Twombly. Spencer argues that courts distinguish "objective facts" from "speculative suppositions" (basically what the Iqbal Court called bare or conclusory allegations) and the latter are deemed not sufficient to push neutral allegations over the line into plausibility. I expect to see courts being even more willing to disregard facts as too speculative--even though all a pleading really involves is speculation. Especially after Iqbal essentially told courts to ignore conclusory or bare allegations.

Third, there was some interesting discussion in the comments about whether the ratcheting up of federal pleading has been a top-down or bottom-up phenomenon. Hillel Levin suggests the latter: The lower courts for several years have been tightening pleading standards and, prior to Twombly, the Court had stepped in twice (Swerkiewicz and Leatherman) to say no. In Twombly and Iqbal, the Supremes switched and began encouraging courts to do more with 12(b)(6). It remains to be seen what lower courts will do now, but, again, I can see them being very receptive to more opportunities to clear docket space.

Fourth, on the subject of "good lines I wish I had thought up" and the next step for pleading: I paraphrase Hillel's proposed amended Rule 8 (from the Civ Pro ListServ): "When we gave you notice pleading, told you "short and plain statement," and gave Form 11 as an example, we really meant it."