FEDERAL PLEADING STANDARDS IN STATE COURT.

• Author: Gadson, Marcus

Most state courts cannot follow both their state constitutions and federal pleading standards. Even if they could, policy considerations unique to states compel state courts to reject federal pleading standards. This is because federal courts have changed pleading standards to allow judges to make factual determinations on a motion to dismiss and to require more factual detail in complaints. While scholars have vigorously debated whether these changes are wise, just, and permissible under the federal rules and the Constitution, they have ignored the even more important questions of whether state courts can and should adopt those pleading standards. The oversight is particularly worrisome because so many state courts are currently struggling with those questions while hearing fifty times as many cases a year as federal courts do. Indeed, questions about pleading standards that deserve the most scholarly attention have received the least. This Article answers these questions with a definitive "no."

First, federal pleading standards violate the "inviolate" right to a jury trial contained in most state constitutions. This Article describes states as generally falling into one of four categories as it relates to the scope of their jury trial rights: (1) those following English common law practice from when the United States became an independent nation, (2) those whose constitutions enshrine distinctively American attitudes toward juries prevalent during the eighteenth century, (3) those who codified the right to a jury trial at the same time they wrote the first civil procedure codes in the nineteenth century, and (4) hybrids. It demonstrates that in all four cases, federal pleading standards are unconstitutional because they allow judges to decide factual questions that must be left to a jury. In some cases, the requirement to provide heightened factual detail is a constitutionally impermissible procedural barrier between a litigant and a jury.

Furthermore, this Article makes the original claim that states should reject federal pleading standards for different reasons than those typically invoked by critics of changes in federal pleading standards. Instead of treating state courts as satellites revolving around federal courts, this Article puts state courts at the center of the debate. It explains that states must consider different policy concerns than federal courts do when formulating pleading standards. First, states generally guarantee litigants the right to a remedy and that their courts will be open to all who wish to remediate an injury. Second, states claim to make it easier than it is in federal courts for litigants to get a jury trial and are supposed to and do hear the vast majority of cases in this country. Third, states elect judges, which necessitates juries serving as a check on politicized decisionmaking. Fourth, states should not consider pleading standards in a vacuum. They should consider their own pleading standards in light of how federal pleading standards threaten to close the courthouse door on many vulnerable litigants. If state courts use the same pleading standards as federal courts now do, those litigants will have nowhere to go and will be shut out of court entirely. These policy concerns do not just justify states using different pleading standards than federal courts do; they require states to do so.

TABLE OF CONTENTS INTRODUCTION I. THE DEVELOPMENT OF CURRENT FEDERAL PLEADING STANDARDS A. Traditional Federal Pleading Standards B. Raising Federal Pleading Standards 1. Courts Question Conley 2. The Private Securities Litigation Reform Act (PSLRA) 3. Twombly and Iqbal C. Scholarly Reaction 420 II. THE REACTION OF STATE COURTS III. CAN STATES CONSTITUTIONALLY FOLLOW FEDERAL PLEADING STANDARDS? A. The Constitutional Objection B. English Common Law and Jury Trial Rights 1. English Common Law's Normative Priors 2. Common Law Procedural Mechanisms to Decide Cases without Juries a. Demurrer to the Pleadings b. Demurrer to the Evidence c. Nonsuit d. Directed Verdict e. New Trial f. Trial by Inspection C. States Where Juries Had More Expansive Powers Than They Did under English Common Law 1. Normative Priors 438 2. The Fact-Law Distinction and Massachusetts Juries D. Field Codes and Juries E. Hybrids 1. Views of Juries in California 2. English Common Law and Juries a. Required Factual Detail in Complaints b. English Common Law Views of juries 3. California Practice 450 F. Would Federal Pleading Standards Survive Heightened Scrutiny? VII. WHY STATE COURTS SHOULD NOT ADOPT FEDERAL PLEADING STANDARDS AS A MATTER OF POLICY 455 A. State Courts Have a Different Orientation from Federal Courts B. Juries Serve Different Purposes in State Courts C. The Structural Case for Rejecting Federal Pleading Standards D. A Note of Caution? CONCLUSION INTRODUCTION

Every civil case begins with a complaint. That complaint is the most important document in the case. If the judge dismisses the complaint, the plaintiff loses the case without discovery and without the chance to tell their story to a jury. If the judge sustains the complaint, the parties will begin an expensive and time-consuming litigation process. The decision on a motion to dismiss has enormous stakes, making the vigorous debate over pleading standards unsurprising.

The debate has raged for decades, as courts wrestle with how literally to apply Rule 8, which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." (1) The Supreme Court's 1957 decision in Conley v. Gibson expansively interpreted Rule 8 to prohibit a complaint's dismissal "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." (2) Conley notwithstanding, lower courts began to narrowly construe Rule 8. In an antitrust case, the Seventh Circuit even claimed that Conley "ha[d] never been interpreted literally." (3) Instead, the court found that, at least in antitrust cases, plaintiffs needed to plead facts and avoid legal conclusions. (4)

The debate intensified when Congress passed the Private Securities Litigation Reform Act (PSLRA), which requires plaintiffs to plead detailed facts showing that a defendant knew or should have known its representations about securities were false and prevented plaintiffs from taking any discovery while a motion to dismiss was pending. (5) The Supreme Court later waded into the debate with its decisions in Bell Atlantic Corp. v. Twombly (6) and Ashcroft v. Iqbal. (7) In those cases, the Supreme Court explicitly adopted a new plausibility standard. Plaintiffs would have to allege enough facts to nudge their claims across the line from "conceivable" to "plausible." (8) Now, federal pleading standards require more factual detail than they used to and allow judges to make factual determinations they were previously admonished to avoid. Scholars have argued over whether today's federal pleading standards fairly construe Rule 8, whether they are justifiable, and even whether they violate the Seventh Amendment.

At the same time, scholars have largely ignored a lively parallel discussion among state courts about whether to adopt federal pleading standards. And they have completely ignored the two most important questions state courts must ask when deciding what to do. First, can they, consistent with their state constitutions, adopt federal pleading standards? And second, should state courts adopt federal pleading standards as a matter of policy? These questions are arguably more important than the debate over federal pleading standards. State courts hear about fifty times as many cases a year as federal courts do. (9) What state courts do with regard to pleading standards will affect the vast majority of litigants in a way that federal pleading standards do not. It is therefore incumbent on scholars to offer state courts guidance about whether states can and should adopt federal pleading standards.

This Article takes the task on. In doing so, it advances two claims. First, modern federal pleading standards will often violate state constitutional jury trial guarantees unless they survive heightened scrutiny. (10) Second, state courts should not adopt federal pleading standards because of policy concerns uniquely applicable to states.

The Article proceeds in four parts. Part I traces the change in federal pleading standards from the old lenient standard to the rigorous modern one. It then describes the heated scholarly reaction the new federal pleading standards have provoked, including a thoughtful argument over whether they infringe on the Seventh Amendment. Part II explains how state courts have reacted to the change in federal pleading standards. As it turns out, they have had a robust debate over whether to adopt those standards that has received little scholarly attention. (11) Part II further explains how the roiling state court debate has failed to consider an important question: can state courts follow federal pleading standards and remain true to their state constitutions? This omission is even more disappointing because, since the Supreme Court refused to consider whether the Constitution authorized it to change pleading standards, the only way to have a conversation about how the Constitution interacts with pleading standards is for state courts to lead it.

Part III takes up the constitutional question. To do so is not without challenge. States wrote constitutions at different times, and those who drafted them evinced a variety of attitudes about juries, with them accepting to greater and lesser degrees background assumptions from traditional English common law. To bring coherence to the constitutional discussion, this Article puts states into one of four different categories when it comes to their jury trial guarantees. The first is states that adopted the English common law view of juries in place when...