AuthorCavallini, Cesare

INTRODUCTION 157 I. THE FEDERAL RULES OF CIVIL PROCEDURE 8(A)(2) AND 9(B). THE PERCEIVED MISTAKE IN TWOMBLY AND IQBAL FROM A CIVIL LAW PERSPECTIVE 160 A. The Interpretation of the Pleading in Twombly and Iqbal: Introductory Remarks for a Comparative Perspective. 160 1. From Code Pleading to the Federal Rules 161 2. Towards the Federal Rules 165 3. From Conley to Twombly and Iqbal 170 4. Insights from a Civil Law Perpsective: A Premise. 175 B. The Iqbal Interpretation of a Special Case. The Perceived Mistake regarding Rule 9(b) 179 II. THE U.S. PLEADING'S DETERMINATION WITHIN THE CIVIL LAW CONTEXT 182 A. A Presentation 182 B. The German Law 183 J. Enhancing the Managerial Judge 183 2. Revitalizing Rule 12(e) 190 C. The Italian Law 193 1. Determination of the Pleading and Res Judicata 193 2. Implications for the U.S. Law 196 D. Rationalizing Twombly-Iqbal? The Comparative Significance of Non-Conclusory Allegations. 200 III. CONCLUDING REMARKS. IS THERE AN OPPORTUNITY FOR REFORM? 204 A. Policy Values v. Systematic Concepts: A Reconciliation beyond the Right and Remedy System . 204 B. Conclusion 208 INTRODUCTION

This article primarily draws opportunity from a recent study by Professor A. Benjamin Spencer on the Supreme Court's interpretation in Iqbal of the second sentence of Rule 9(b) of the Federal Rules of Civil Procedure--which permits conditions of the mind to be alleged generally as being subject to the plausibility pleading standard it devised for Rule 8(a)(2) in Twombly. (1) Namely, the plaintiff must introduce facts and circumstances sufficient to render the allegations plausible. That interpretation is, according to Professor Spencer, textually, "patently unsupportable." (2 ) I was utterly intrigued by this conclusion, as much as by reading his brilliant considerations on the Iqbal jurisprudence regarding the specific pleading case of Rule 9(b).

I realize that the determination of pleadings post-Twombly and Iqbal (collectively, "Twiqbal"), discussed at length in the U.S. literature, currently has different interpretations. The purpose of this article is to offer a different tool to assist in addressing the ambitious question of whether the Federal Rules have to change, and if so, how to do it. That is, a civil law comparative analysis, which allows us to approach the question from a broader perspective.

There is no doubt that the determination of the pleading reveals how each civil justice system is structured and how the parties and the judge manage the process through the discovery phase. More generally, the discussion on the duties of the pleading conferred on the plaintiff undoubtedly reflects the historical path followed by every country-specific civil procedural law in concretizing the fundamental principles of civil justice. It is the public service of each system to provide a remedy or assign a specific right enforceable by the authority of the decision, according to the due process of law, universally recognized.

Thus, one might observe that the approach to a study on the pleading problem from a different and perhaps unusual point of view--the civil law comparative perspective--must not neglect a threshold evaluation. That is, the classic assumption of the dichotomy between the rights system in the civil law and the remedy system in the common law, as it informs the primary level of the civil action's structure. At first glance, this dichotomy might demonstrate a possibly diverse and apparently irreconcilable approach to the introductory phase of the process. For example, heightened requirements seem appropriate in a system where the pleading must explain the right brought in action, given it would seem to require a more in-depth determination of the facts. One might say this kind of primary assumption seems intuitive and natural, and thus conclude that notice pleading in the U.S. appears to be in line with a remedy system, due to the absence, generally speaking, of a pre-assigned right to be brought in the action.

On the contrary, this preliminary and somewhat provocatory premise soon reveals its inadequacy, for several reasons concerning the essence and the actual significance of this distinction. (3) It does not mean that the dichotomy has no impact on the comparative evaluation I will conduct. Rather, the Twiqbal interpretation of pleading determination, which requires more particularity in pleading fraud, and the suggestions for its renewal that arise from the literature, allow us the opportunity to critically examine this traditional dichotomy and to determine whether it has a practical impact. It further allows us to consider the dichotomy through the specific lens of its historical and global evolution.

In this article, rather than explain the U.S. doctrine of notice/special pleading, I seek to define it by reference to its milestones throughout the evolution of U.S. law, as viewed through the lens of the historical development of civil procedure under the civil law tradition. Comparative analysis provides us with a method to understand each country-specific pattern of development in civil procedure. (4) The aim is therefore to develop a tool based on this analysis that may be useful to frame the U.S. Supreme Court's trend and, at the same time, to appreciate its criticism.

The article proceeds in three stages. Section I summarizes the origin and the debate on notice pleading regulation and interpretation, with a particular focus on what seems appropriate for the pleading of fraud. This Section examines the origin of the current rules to lay the foundation for an eventual comparative analysis, focused on the role played by the evaluation of policies behind the relevant rulemaking. Section II engages in this comparative analysis by comparing the U.S. law to the most relevant civil law systems, namely the German and the Italian. First, the comparative evaluation of the German law on pleading determination emphasizes how the U.S. system is rightly moving towards a more effective role for the judge within the pre-trial phase because of the growing influence of the managerial judge theory. This changing view might suggest that the enhanced role and use of the motion to dismiss should be addressed differently from how it has been considered in the majority of the literature after Twiqbal. This perspective leads us to the revitalization of Rule 12(e) and the motion to clarify pleadings by the judge's own initiative. Notwithstanding some specific peculiarities between the regulatory regimes regarding pleading determination under U.S. and German law, both systems grapple with the dilemma of balancing different policies when crafting and interpreting rules around the judicial discretionary power in conducting the pre-trial phase and the effectiveness of the discovery phase. Accordingly, regardless of whether the exclusive objective of the original policy behind notice pleading was to lessen the costs of litigation and ensure the broadest access to courts by everyone, nowadays, the purpose of achieving a decision on the merits through an effective and efficient pre-trial phase should be able to prevail over the hasty dismissal of a lawsuit. This Section thus tries to understand if the determination of a U.S. pleading, with particular reference to the determination level of facts required after Twiqbal, also shares a common objective with the civil law system, as it may be the connection between the pleading's content and the object of the res judicata effects. Second, and in the same vein, a comparison to the Italian system--which historically developed symbiotically with the German one because of the common Pandectist origin--is useful. This comparison shows how one should give more regard to the link between the rules governing pleading and the res judicata object (primarily in terms of claim preclusion) and defining its scope through the basic unit of litigation: the cause of action. Finally, this Section analyzes, also from a comparative perspective, the essence of Twombly and Iqbal, centered on the (non-) conclusory allegations as the primary requirement for determination of the pleading. The purpose here is to determine if the Supreme Court's interpretation can be rationalized within a broader global scenario.

Section III proceeds to draw out the conclusions of such a comparative analysis to contribute to the debate on the possible rewriting of the U.S. pleading rules, and potentially, reform of the entire pleading system. Further, it reflects on how a consideration of the German and Italian legal systems, in particular, allows for reframing the requirements set out in Rule 9(b), but not necessarily in contrast to the Twiqbal interpretation.


    1. The interpretation of the pleading in Twombly and Iqbal: Introductory remarks for a comparative perspective.

      The interpretation of the pleading following Twombly and Iqbal has been extensively discussed in the literature. (5) This paper seeks to contribute to the current discussion on the "adventures" of U.S. notice pleading from a perspective broader than domestic law, that being a comparative perspective. As foreshadowed in the introduction to this article, the objective of this comparative evaluation from a civil law perspective is to better understand the term of reference (in this case, rules 8(a)2 and 9(b) of the U.S. Federal Rules of Civil Procedure) by tracing its historical development. In other words, the motivation for pursuing a comparative evaluation is to conduct an inquiry about the reasoning behind the current pleading rules, in the hope that it might allow us to better understand the current context as a whole.

      One can recognize that the primary task in analyzing a specific set of rules (mainly for a comparative evaluation) is to clarify its scope and rationale. For this task, it seems crucial...

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