Procedure as palimpsest.

• Author: Struve, Catherine T.
• Position: FOREWORD

Ask an artist about the importance of "Twombly," and he or she will likely think you are referring to Cy Twombly. Ask a lawyer about the importance of "Twombly," and she will undoubtedly understand you to be asking about Bell Atlantic Corp. v. Twombly (1) That the Supreme Court's landmark pleading decision from the spring of 2007 bears the same name as the abstract painter is purely coincidental; but on consideration, the Twombly decision bears some similarity to Twombly's work. Take any of a number of Twombly paintings from the late 1950s through the 1970s, and you will find indistinct forms that can be interpreted in numerous ways and erasures that are as significant as the marks scribbled atop them. (2) Twombly's paintings have been characterized as palimpsests--images in which the most recent marks do not fully obscure the earlier patterns. (3) Likewise, one of Twombly's key features is an erasure: Twombly "retire[s]" (4) the Court's statement a half-century earlier in Conley v. Gibson "that a complaint should not be dismissed for failure to state a claim 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." (5) The indeterminate new marks made by Twombly caused urgent debate: how should courts interpret--and how broadly should they apply--the Twombly Court's conclusion that the plaintiffs' antitrust complaint must be dismissed because their claim of conspiracy was not "plausible"? (6) Just under two years later, the Court answered the question of scope: it made clear in Ashcroft v. Iqbal that Twombly's new approach to pleading applies to all cases in federal court--not merely to complex antitrust class actions. (7)

To interpret Twombly and Iqbal, we must view those decisions in the light of the procedural law that forms their background. The three articles in this collection do so in distinct but complementary ways. And in so doing, they examine not only pleading standards but other interlocking aspects of contemporary civil procedure. Professor Edward Hartnett's close analysis of Twombly and Iqbal focuses our attention on underlying historical assumptions concerning the plausibility of inferences. Through this analysis, he suggests to advocates the importance of educating judges concerning such questions of plausibility in the context of the particular case. Professor Hartnett also examines the connection between motions to dismiss and discovery, and he finds that, even post-Iqbal, the district judge enjoys discretion to permit targeted discovery--pending the disposition of a motion to dismiss--in ways that may promote the survival of claims that might otherwise be dismissed. In considering Professor Elizabeth Schneider's article, we step several paces further back, so that our field of vision takes in not only pleading but also summary judgment and the evidentiary principles that govern expert testimony. Professor Schneider argues forcefully that these doctrines combine to tilt the balance against plaintiffs in civil rights and employment actions, and she considers the implications of this insight for the role of federal judges in these important categories of litigation. Professor Scott Dodson broadens our field of inquiry further still, by suggesting that we evaluate the effects of Twombly and Iqbal in the light of pleading standards not only in the United States but also abroad. In combination, these articles have much to tell us, not just about Twombly and Iqbal, but about developments in U.S. federal civil procedure and the consequences of those developments for the enforcement of substantive rights.

In Taming Twombly, Even After Iqbal, Professor Hartnett begins by examining the reasoning behind the Twombly Court's holding that a complaint alleging a "contract, combination.... or conspiracy, in restraint of trade or commerce" in violation of section 1 of the Sherman Act (8) cannot "survive a motion to dismiss when it alleges that major telecommunications providers engaged in certain parallel conduct unfavorable to competition, absent some factual context suggesting agreement, as distinct from identical, independent action." (9) He summarizes the scholarly criticism of Twombly and notes in particular the concern that "the Court imposed a heightened specificity standard of pleading and that plaintiffs will lack the evidence to plead these specifics prior to discovery." (10) Professor Hartnett observes that though Twombly could have been read as a decision concerning the substantive requirements for an antitrust conspiracy claim--rather than as a decision that bears on pleading standards generally--there was ample support in the Twombly opinion for the contrary reading. (11) And, as Professor Hartnett explains, lower federal courts promptly applied Twombly in a range of substantive areas outside antitrust. (12) Professor Hartnett also considers the possibility that Twombly could have been viewed as focusing on "complex cases involving the likelihood of extremely expensive discovery." (13) Again, he notes that passages of broad language in Twombly cut against such a limiting interpretation. Moreover, he suggests, reading Twombly to alter the pleading standard in complex cases with expensive discovery "would put the decision in serious tension with the transsubstantive approach of the Federal Rules of Civil Procedure." (14)

Here Professor Hartnett identifies one of the major current challenges for federal civil procedure. Should the Civil Rules continue to take a rigorously transsubstantive approach that applies the same provisions to the most complex and the simplest of cases? (15) If so, do we run the risk that the Rules will be adapted to the needs of the complex cases in a way that distorts their application to smaller, simpler disputes? In one respect, the Civil Rules explicitly depart from a transsubstantive approach by exempting specified types of cases from Rule 26(a)'s initial-disclosure requirement, (16) Rule 26(d)'s discovery moratorium, (17) and Rule 26 (f)'s conference procedure. (18) More recently--and without crafting a special rule for particular types of cases--the rulemakers altered Rule 26 to take special account of actions in which electronic discovery is particularly burdensome. (19) And, of course, the Civil Rules' pleading standards have never been entirely transsubstantive; Civil Rule 9(b)'s particularity requirement for pleading fraud or mistake dates back to 1938. (20) But these are exceptions; in the main, the Civil Rules couple a transsubstantive approach with numerous grants of discretion that, in practice, allow the district court to tailor its practice to the needs of the particular case. Whether that largely transsubstantive approach will continue to hold is a key question.

In any event, as Professor Hartnett notes, the reach of Twombly has now been settled. (21) Iqbal involved very different facts and claims than Twombly. Javaid Iqbal, a Muslim citizen of Pakistan, brought constitutional claims against a number of federal officials stemming from his detention on federal charges after September 11, 2001. (22) At issue in the appeal that reached the Supreme Court were Iqbal's claims against Robert Mueller (the Director of the FBI) and John Ashcroft (the former United States Attorney General). Iqbal alleged that Mueller and Ashcroft were responsible for his subjection to abusive conditions of confinement based on his race, religion, or national origin. (23) A closely divided Supreme Court held that Iqbal's allegations failed to state a claim against those two defendants. (24) The Court first addressed the substantive law governing Iqbal's claims, and concluded that those claims required discriminatory purpose on the part of Mueller and Ashcroft. (25) Though Iqbal did allege such a purpose, the Court found those allegations conclusory and disregarded them; and the Court held that the complaint's remaining allegations failed to render Iqbal's claims against Mueller and Ashcroft plausible because, in the Court's view, it was more likely that Mueller and Ashcroft's actions were motivated by legitimate law-enforcement purposes than by a discriminatory purpose. (26) In the process, the Court roundly rejected any attempt to cabin Twombly as an antitrust decision: Twombly, the Iqbal Court stated, "expounded the pleading standard for 'all civil actions.'" (27)

What, then, is the content of that universally applicable pleading standard? In Part II of his article, Professor Hartnett offers an important and helpful interpretation of Twombly's plausibility requirement. Professor Hartnett rejects the view that Twombly permits dismissal of a complaint because the district judge finds the facts alleged or the legal theory advanced in the complaint to be implausible. (28) Rather, he suggests, the plausibility analysis that Twombly invites concerns the plausibility of the inferences to be drawn from the facts. (29) Thus, he argues, "Twombly's insistence that the inference of conspiracy be 'plausible' is equivalent to the traditional insistence that an inference be 'reasonable." (30) And the plausibility of the inference, Professor Hartnett contends, can depend on the context of the claim. (31) Turning to Form 11 (formerly Form 9), which famously pleads negligence liability merely by stating that "[o]n date, at place, the defendant negligently drove a motor vehicle against the plamutt," (32) Professor Hartnett suggests that the Form's stark simplicity can be viewed as a reflection of the familiarity of car-accident negligence claims--and he supports this insight by citing Charles Clark for the proposition that even in the nineteenth century equally simple allegations would have sufficed to ground a negligence claim. (33)

By contrast, in other contexts, the inferences that the plaintiff wishes to draw from the facts in the complaint may not strike the judge as plausible. The judge's willingness...