Comparative convergences in pleading standards.

• Author: Dodson, Scott

INTRODUCTION I. COMPARATIVE CIVIL PROCEDURE GENERALLY A. Benefits B. Obstacles II. AMERICAN EXCEPTIONALISM IN FEDERAL CIVIL PLEADING A. Traditional Rule 8 Pleading in the United States B. Foreign Approaches III. CURRENT TRENDS IN AMERICAN FEDERAL CIVIL PLEADING A. Statutes B. Twombly and Iqbal IV. POTENTIAL EFFECTS OF AMERICAN FEDERAL PLEADING TRENDS CONCLUSION INTRODUCTION

As transnationalism becomes more prominent, comparative law is burgeoning. In one area of American law, however, it has met a formidable challenge: civil procedure. Comparative civil procedure has been relatively slow to find its way into American law-school classrooms, legislation, and judicial opinions. (1)

There are many reasons why, but one reason is American exceptionalism. Though there is a vast difference between common law and civil law jurisdictions, (2) American procedure is very different even from its common law kin. As I and others have stated previously, American exceptionalism is a major obstacle to the benefits of comparative study and to potential reform in the field of civil procedure. (3)

This may be changing, however. Certain features of American procedure historically considered exceptionalist appear to be trending toward their foreign counterparts. (4) These trends, should they continue, may make comparative study, and perhaps even harmonization, easier. (5) They also, however, pose new challenges to the coherence of our own American system.

Pleading is a particularly useful example. It is a prominent feature of American civil procedure that has long been exceptional. Unlike civil law countries, which require detailed fact pleading and often evidentiary support at the outset, and unlike even most common law traditions that also require some fact pleading, Rule 8 requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," (6) a formula that has traditionally focused on notice rather than facts. (7) This conception of pleading is unlike any other in the world.

But exceptionalism in American pleading may be waning, at least in discrete areas. Congress has begun to experiment with imposing heightened pleading requirements in, for example, the Private Securities Litigation Reform Act of 1995. (8) Similarly, but perhaps more dramatically, the Supreme Court in Bell Atlantic Corp. v. Twombly (9) and Ashcroft v. Iqbal (10) recently imposed a transsubstantive "plausibility" standard that depends upon factual sufficiency, eliminating the more liberal notice-pleading standard that the Court had endorsed since 1957.

It may be that these discrete changes do not reflect a deeper and broader change to American pleading. Even if they did, the potential change to American pleading would still leave it significantly different from foreign models. But the mere fact of these changes, even in their narrowest form, suggests that American procedure is neither static nor irrevocably exceptionalist. If these trends do reflect a broader willingness to experiment with pleading and civil procedure generally, then they may allow for even more important gains, such as meaningful transnational dialogue between the U.S. and foreign systems, more valuable comparative analyses in the United States, and the potential to harmonize civil procedure across national boundaries. Of course, such trends also would present substantial challenges to the coherence, workability, and fairness of an American system built upon the premise of liberal pleading.

Part I frames this discussion by analyzing the normative benefits of, and practical obstacles to, comparative civil procedure generally. Part II locates American pleading in its exceptionalist state by contrasting it with civil law and other common law systems. Part III throws recent changes like Twombly and Iqbal into the mix and argues that they are shifting--albeit gradually--the American approach closer to the pleading standards of the rest of the world. Part IV then discusses how this trend may affect the potential for comparative studies and transnational relations, both for pleading specifically and for civil procedure generally.

1. COMPARATIVE CIVIL PROCEDURE GENERALLY

   1. Benefits

      Comparative civil procedure offers many of the same benefits as comparative study generally. Comparative studies have academic, practical, reformative, and social benefits.

      Academically, studying the procedure and procedural traditions of other countries can deepen one's understanding of U.S. procedural norms and the underlying policy balances they strike. (11) Practically, the increasing prevalence of transnational litigation and transactions concomitantly requires broader exposure to foreign laws and procedures. Advocates, advisers, and judges must have at least a working knowledge of foreign procedures to be able to frame, anticipate, or decide legal issues that cross national boundaries. (12)

      Reformatively, knowledge and understanding of other systems provide an opportunity for individual systems to devise, either via importation or exportation, a different model for solving common problems. On a multinational scale, such reforms can harmonize various independent legal systems into a more coherent and accessible global system. (13)

      Socially, a comparative civil procedure study may help bring nations and cultures closer together in a global community by broadening perspectives, reducing isolationism, and increasing tolerance, (14) perhaps thereby improving international relations. (15)

   2. Obstacles

      Despite these potential benefits, several significant obstacles have stymied comparative civil procedure in the United States. First, civil procedure is extensively rooted in its home legal system. (16) Various procedures are built upon each other--notice pleading, for example, is tied to liberal discovery (17)--and, as a result, alteration of one rule may disrupt others. (18) Civil procedure also derives from and reflects deep-seated, often peculiarly held, values of the society it regulates. (19) This interconnectivity makes comparative procedure particularly resistant to the benefits normally attendant to comparative studies. (20)

      Second, American proceduralists are infamously provincial (21) (though my own assessment is that this is changing (22)). Many students in U.S. law schools will never learn a thing about the civil procedure rules or systems of other countries. (23) Judges and legislators interpreting procedural rules or implementing procedural reforms are far more likely to look inward than outward. (24) Unilingualism and geographical isolation perpetuate U.S. self-centeredness.

      Finally, and of particular relevance here, American procedure's entrenched exceptionalism creates barriers to comparativism. (25) The list of exceptionalist features is extensive: liberal pleading, liberal (and costly) discovery, class actions, a disengaged judge, civil juries, largely unfettered damage assessments, and the "American rule" of cost allocation. (26) It is much harder to understand, appreciate, and model a contrary perspective when one's home perspective is both so rooted and so different.

      These barriers all but foreclose large-scale, rapid changes in U.S. procedure absent, perhaps, some urgent crisis. (27) The question posed here is whether components of American exceptionalism, such as pleading, are impervious to gradual changes and, if not, what that might mean for the future of comparative civil procedure.

2. AMERICAN EXCEPTIONALISM IN FEDERAL CIVIL PLEADING

   America has the most lax pleading system in the world. (28) That has not always been the case. America inherited its common law procedural rules from Great Britain, and its pleading system evolved in analogous ways until the twentieth century. Since the adoption of the Federal Rules, however, American pleading has taken a very different path.

   1. Traditional Rule 8 Pleading in the United States

      The Federal Rules were a result of dissatisfaction with the Field Code, which dominated court practice from 1848 to 1938. (29) Code pleading required the complaint to contain "[a] statement of the facts constituting the cause of action." (30) Correlatively, the Codes severely limited discovery. (31)

      Later dissatisfaction with the Codes in general (and their requirement that plaintiffs plead "ultimate" facts, as opposed to evidence or "evidentiary" facts (32)) then led to the consideration and adoption of the Federal Rules of Civil Procedure. Charles E. Clark, the principal drafter of the Rules (33) and a passionate advocate of relaxed pleading, (34) designed Rule 8 to eliminate the problems of fact pleading under the Codes. (35) The drafters "wanted something simple, uniform, and transsubstantive." (36)

      Changes to pleading corresponded with broader changes throughout the procedural system. The Federal Rules were designed to install, in Professor Marcus's words, a "'liberal ethos,' in which the preferred disposition is on the merits, by jury trial, after full disclosure through discovery." (37) The drafters wanted to reduce the importance of pleadings, (38) particularly as a vehicle for merits determinations, and instead placed the burden of weeding out meritless lawsuits on liberal discovery and summary judgment. (39) Thus, the primary goal of Rule 8 moved from isolation of issues, factual development, and merits determination to notice. (40)

      The resulting Rule 8 requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." (41) Rule 8 thus moved away from fact pleading (42) and instituted something much closer to notice pleading. (43) As Judge Posner has put it, "The federal rules replaced fact pleading with notice pleading." (44)

      Rule 8 conspicuously lacks any mention of facts. (45) Of course, it would be difficult to provide proper notice without recitation of at least some facts. (46) But, as Clark later wrote, The notice in mind is rather that of the general nature of the case and...