Ashcroft v. Iqbal

• Author: Hillel H. Levin
• Pages: 31-45

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applying any heightened pleading standard, I have a difficult time

understanding its opinion any other way.

Accordingly, I respectfully dissent.

Questions

1. Who is correct, the majority or the dissent, on the question of whether the

standard announced in Twombly is consistent with Conley and other cases?

Consider: if the Swierkiewicz case were decided today, post-Twombly, would

it come out the same or differently? Why? Put otherwise, in the wake of

Twombly, what would a plaintiff have to plead in a discrimination case in

order to state a claim?

2. What does “plausible” mean? How would a court determine whether a

complaint is plausible?

3. The majority opinion’s discussion and rejection of the “no set of facts”

language from Conley cites almost exclusively to lower court opinions and

the analysis of commentators, rather than on other Supreme Court opinions.

Why might this be so?

4. What does the majority identify as the dangers of allowing a case like

Twombly to proceed in the district court? In his dissent, how does Justice

Stevens argue that such dangers should be addressed?

5. What does Justice Stevens argue the purpose of Rule 8(a) is?

After Twombly, there was a great deal of disagreement among commentators and

lower courts as to its implications. The following case was the next opportunity for

the Supreme Court to address pleading and Rule 8(a)(2).

Ashcroft v. Iqbal

556 U.S 662 (2009)

JUSTICE KENNEDY delivered the opinion of the Court.