Inventing Tests, Destabilizing Systems
| Author | Kevin M.Clermont; Stephen C. Yeazell |
| Position | Robert D. Ziff Professor of Law, Cornell Law School, who thanks Steve Burbank, Mike Dorf, John Leubsdorf, and Faust Rossi for helpful comments; David G. Price & Dallas P. Price Professor of Law, UCLA School of Law, who is also grateful to Allen M. Katz for comments on a draft |
| Pages | 02 |
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The headline need no longer equivocate after two recent U.S. Supreme Court cases: Pleading Left Bleeding. The Court has revolutionized the law on pleading. Litigators (and procedure scholars) have taken note of the Court's fresh pair of decisions, the suggestive Bell Atlantic Corp. v. Twombly1and the definitive Ashcroft v. Iqbal."2 But these decisions do more than redefine pleading rules. By inventing a new and foggy test for the threshold stage of every lawsuit, they have destabilized the entire system of civil litigation.3 Although we shall have to justify calling it a destabilization, the overall effect should cause even those without a special interest in pleading to take notice.4
These decisions should also reopen debate over the fundamental choices made during our legal system's design. Choices such as this one, how accessible to make the system of justice for complainants or, alternatively, how much process to inflict on their opponents, are of course debatable. Indeed, because the litigation system plays so central a role in governing our society, all interested persons should have the opportunity to debate the major choices before anyone makes large changes to the status quo. The bone this Article picks with the Court is not that it took the wrong path for pleading, but that by blazing a new and unclear path alone and without adequate warning or thought it left the pleading system in shambles.
This Article will conclude that wherever you stand on pleading- whether you think the federal litigation system is awash with frivolous suits, or whether you would purify the role of pleading by eliminating entirely its screening function-you should lament these recent decisions. To get there, we shall first describe the Court's choice to replace minimal notice pleading with a robust gatekeeping regime, and we next shall give some reasons for Page 824 thinking that the Court's preference may promise the worst of both worlds. Then, after some thoughts on the Justices' possible motivations, we shall briefly sketch some routes for escaping the bog.
Pleading serves as the gatekeeper for civil litigation. A lawsuit dismissed because the complaint fails to make the requisite allegations never reaches the stage at which the evidence supporting those allegations can emerge. This early demise produces great social benefit if, in the end, the facts would not have supported a judgment for the plaintiff. The same early demise inflicts considerable social harm if, in the end, the facts would have supported such a judgment, but for the claim foundering over a mere defect in the complaint.
Acting under the authority of the Rules Enabling Act,5 the Supreme Court promulgated the Federal Rules of Civil Procedure of 1938. One of those Rules, Rule 8, proclaimed a new day in pleading.6 In the effort to end centuries of dispute over the words the plaintiff needed to say to start a lawsuit, the new Rule proclaimed that a complaint would suffice if it contained "a short and plain statement of the claim showing that the pleader is entitled to relief."7
The older view had held that pleadings must accomplish a great deal more, laying out the issues in dispute and stating the facts in considerable detail.8 But the rulemakers felt that this view asked too much of the pleading stage, which consequently had become the center of legal attention, ended up mired down in battles over technicalities, and provided a vehicle for monumental abuse.9 The accompanying Appendix of Forms illustrates just how serious the rulemakers were about simplifying pleading. Form 11 sets Page 825 forth a vehicular-negligence claim in thirty-seven words, achieving this brevity in part by blessing the use of conclusory terms: "[T]he defendant negligently drove a motor vehicle . . . . As a result, the plaintiff was physically injured . . . ."10
Such conclusory brevity prevents expensive squabbling over the formulation of the grievance, but makes starting a lawsuit unsupported by evidence very easy. It may be that the defendant was not negligent, that he was negligent but his negligence did not cause the accident, that the plaintiff suffered no injury, or even that there was no accident at all and so the claim was fabricated. How can a defendant meet such unjustified claims? Under the rulemakers' system, the answer lay in mechanisms for forced uncovering of evidence and for ending the case short of trial if the evidence uncovered would not support a judgment for the plaintiff. The motivating theory was that the stages subsequent to pleading-disclosure, discovery, pretrial conferences, summary judgment, and trial-could more efficiently and fairly handle functions such as narrowing issues and revealing facts, and, thus, the whole system could better deliver a proper decision on the merits.
Under the Rules, then, pleading was a pervious gate. Its main task was to give fair notice of the pleader's basic contentions to the adversary (and the court and the public). It passed most of the screening function from the threshold to later stages of litigation.
This ptosponement of screening constituted a fundamental choice in procedural design, a choice that is surely debatable. Some of the persistent opposition to such permissive pleading flowed from the costs of the later stages, to which the Rules had transferred the screening function. Uncovering evidence to demonstrate the weakness of the plaintiff's claim entails expenses that the defendant cannot recoup from the plaintiff. In some cases-like Twombly and Iqbal-those costs may be great, either in financial outlay or in time and energy diverted from important public or private tasks. But until Twombly and Iqbal, the system of civil litigation remained on the chosen path, mainly performing the screening function not at the pleading stage but at the fact-development and fact-testing stages. Most observers retained the belief that this choice was a good one,11 while Page 826 the groups charged with revising the Rules rejected any major alterations to the Rules after hearing from bench and bar.12
Twombly and Iqbal changed everything, or at least appeared to do so. The two cases shifted a significant portion of the screening function back to the pleading stage.
In Bell Atlantic Corp. v. Twombly, telephone and Internet subscribers brought a class action against various telecommunications giants, claiming an illegal conspiracy in restraint of trade.13 Under antitrust law, however, parallel and even consciously identical conduct unfavorable to competition is not illegal if it comprises only independent acts by competitors without any agreement.14 The complaint alleged parallel conduct in great detail, explaining how each company sought to inhibit upstarts in its own region and refrained from entering the other major companies' regions. But the complaint alleged an agreement in conclusory terms based upon information and belief because the plaintiffs had no proof yet in hand.15
The obvious concern in this big, complex case was that the claims opened the door to expensive discovery. Therefore, the Court upheld dismissal on a pre-answer motion. According to the Court, the complaint had to show an agreement among competitors.16 The defendants' behavior was what each company would naturally have done in pursuit of its own interests.17 The plaintiffs needed to give factual detail to make their complaint plausible, yet they "mentioned no specific time, place, or person involved in the alleged conspiracies."18 The plaintiffs, who "have not nudged their claims across the line from conceivable to plausible,"19 had their complaint dismissed. Page 827
In so ruling, the Court imposed an entirely new test on the pleading stage, instituting a judicial inquiry into the pleading's convincingness. Thus, in this case, Justice Souter for the Court ignored the conclusory allegation of agreement.20 It had to accept as true the allegations of parallel conduct, but could still treat them as an inadequate "showing" of entitlement to relief because they did not make plausible the existence of an actual agreement.21
Justice Stevens, joined in relevant part by Justice Ginsburg, dissented. He noted: "Whether the Court's actions will benefit only defendants in antitrust treble-damages cases, or whether its test for the sufficiency of a complaint will inure to the benefit of all civil defendants, is a question that the future will answer."22
Two years later, the Court answered Justice Stevens's question. On interlocutory appeal in Ashcroft v. Iqbal, the Court ruled that Twombly applied to all federal complaints and then overturned the lower courts' approval of the complaint before it.23 Here, the civil-rights plaintiff, a Pakistani Muslim arrested post-9/11 in the United States, sued high federal officials upon allegations of "harsh conditions of confinement on account of his race, religion, or national origin."24 The Court ignored conclusory allegations regarding the cause of action's elements, including that the defendants knowingly condoned a discriminatory policy.25 The Court then said the remaining allegations did not suffice to make plausible that the Attorney General and the FBI Director...
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