The Doctrine in the Shadows: Reverse-erie, Its Cases, Its Theories, and Its Future With Plausibility Pleading in Alaska

Publication year2015


Alaska Law Review
Volume 32, No. 1, June 2015
Cited: 32 Alaska L. Rev. 213


Philip A. Tarpley [*]


In 2007 and 2009, respectively, the United States Supreme Court decided Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, abrogated Conley v. Gibson's notice pleading standard, and imposed a new plausibility pleading standard upon the federal court system. Alaska, along with a majority of states however, still retains Conley's "no set of facts" notice pleading standard. This Note asks, in light of the difference between the federal and Alaska pleading standards, whether Alaska-or any state-could be forced to apply the federal pleading standard when it adjudicates federal substantive claims. Prior to Iqbal, a plaintiff in Alaska would have faced the same pleading obligations in state and federal court regardless of whether he pleaded a state or federal claim. As this Note describes, now, a plaintiff could face different pleading standards depending on not only where he brings his claim, but also, if he's in state court, whether he brings a state or federal claim. The reason for this is the Reverse- Erie doctrine: an little-developed judicial choice of law theory that broadly asks which procedure, federal or state, applies in a state court proceeding. Using the differences between federal and state pleading standards as an opportunity to flesh out Reverse -Erie, this Note concludes that while it is unlikely that the Supreme Court would force a state to adopt the federal pleading standard, the jurisprudential framework for such a move exists.


On November 18, 1957, the United States Supreme Court handed down Conley v. Gibson [1] and ushered in an era of notice pleading. Though initially only federal in application, Conley' s interpretation of Federal Rule of Civil Procedure 8(a)(2) soon swept across the nation. Throughout the next half-century, state after state adopted Conley' s liberalized notice pleading standard. In 1940, Arizona's Supreme Court adopted the Federal Rules verbatim, making Arizona the first federal replica state-"that is, a state with a procedural system modeled after the Federal Rules." [2] In 1959, the Alaska Supreme Court adopted its own set of procedural rules modeled after the Federal Rules. [3] In 1967, that court adopted Conley' s interpretation of Rule 8(a)(2) and incorporated the federal notice pleading standard. [4] By 1975, twenty-one other states had followed Arizona's and Alaska's examples and become federal replica states. [5] By 2007, fifty years after Conley was decided, twenty-six states and the District of Columbia had altered their procedural rules to resemble the Federal Rules. [6]

On May 21, 2007 and May 18, 2009, respectively, the United States Supreme Court decided Bell Atlantic Corp. v. Twombly [7] and Ashcroft v. Iqbal, [8] abrogating Conley 's notice pleading standard and imposing a new plausibility pleading standard upon the federal courts. [9] These decisions shook the foundation for those states, like Alaska, that had adopted the federal pleading rule using the Conley standard. After Twombly and Iqbal, state courts had to decide whether to follow the Supreme Court and change from notice to plausibility pleading or stick to the Conley "no set of facts" standard. This question was especially daunting for states, like Alaska, that had functioned under Conley 's pleading standard for decades.

Two recent state supreme court decisions have thrown this question into the forefront of civil procedure discussions. In 2010, the Washington Supreme Court handed down McCurry v. Chevy Chase Bank, FSB [10] and became the first state supreme court to reject the new plausibility pleading standard. [11] One year later, the Tennessee Supreme Court joined Washington when it decided Webb v. Nashville Area Habitat for Humanity, Inc . [12] As time draws on, more states will be forced to answer this question for themselves. Alaska will certainly be faced with this decision. Though a replica state, the Alaska court system has yet to address Twombly and Iqbal. As it stands today, Alaska courts still apply Conley' s notice pleading requirement to the federal and state claims that pass in front of them. [13]

This issue has substantial implications for all stages of litigation. "Pleading comes early in the life cycle of a case, shapes litigation strategy, reveals valuable information to the opposing party (that can be used to encourage settlements), and is the gateway to all subsequent procedural devices." [14] For pro se litigants in particular, pleading is their first exposure to the court system. The accessibility of the court system can dramatically affect both the outcome of the litigant's case and their willingness to file a claim. And, unlike certain procedures that only affect particular cases, pleading standards affect every case brought in court. In Alaska, that means over 150,000 cases annually. [15]

In light of Twombly and Iqbal, this Note intends to answer the question of which procedure-federal or state-must apply in an Alaska state court adjudication of a federal substantive claim when Congress, the Constitution, and the Courts have remained silent on this issue. The consequences of this question's answer are crucial to discussions of the federal/state balance of power. The jurisprudential doctrine at work, Reverse-Erie, [16] is little known, rarely documented, and relatively obscure. As Justice O'Connor commented in 1988, "the implications of this 'reverse-Erie ' theory [are not] quite clear." [17] Her comment is an understatement. Most of the legal scholarship to touch upon the subject has done so only briefly and in minor detail. [18] This Note attempts to change that. Here, each of the notable Reverse-Erie cases and the theories they demonstrate will be put on full display.

Ultimately, the answer to the question of which procedural law- federal or state-must apply in state court is unclear. Though it is unlikely that the Supreme Court will ever force the heightened plausibility pleading standard onto the states that have not adopted it, the jurisprudential framework exists for such a move to be made. Consequently, the Alaska Supreme Court, and all of the courts in states that still apply Conley, should keep their ears to the ground on this matter.

The advent of plausibility pleading and the question it poses to state courts, however, presents an opportunity for constitutional law scholars to more clearly understand Reverse-Erie . For the last century, the Reverse-Erie doctrine has hidden in the shadows of Erie itself, as well as federalism, pre-emption, and other monolithic constitutional doctrines. Now, as states start to assert their own local procedural dominance, Reverse-Erie has a chance to stand in the light of day. Most importantly, this situation may eventually provide the Supreme Court with an opportunity to apply Reverse-Erie to an essential aspect of civil procedure that touches every case across the nation: pleading standards.

Part I of this Note introduces and explains the current pleading situation. Part II explains the fundamental question of the Note. Part III delves into the Reverse-Erie doctrine, explaining the theories it represents, the cases that develop those theories, and the current state of Reverse-Erie jurisprudence. Part IV builds off of the information in Parts I-III to answer the question of which procedure-federal or state-must apply in an Alaska state court adjudication of a federal substantive claim.


A. The Federal Pleading Standard-Conley, Twombly, and Iqbal

In 1934, Congress passed the Rules Enabling Act (REA) [19] and opened the door to a new era of civil procedure in the United States. Four years later, under the authority granted to it in the REA, the Supreme Court adopted the Federal Rules of Civil Procedure (FRCP), a set of procedural rules that govern federal courts across the nation. [20] The FRCP fundamentally "reshaped civil procedure." [21] Today, the passage of the FRCP is largely understood as "the single most substantial procedural reform in U.S. history." [22]

Among its many significant changes, the FRCP included a pleading requirement in Rule 8. Under Rule 8(a)(2), all that is needed to sufficiently construct a federal claim is "a short and plain statement of the claim showing that the pleader is entitled to relief." [23] Rule 8 becomes important when the sufficiency of the plaintiff's pleadings is called into question. If a defendant files a motion to dismiss "for failure to state a claim upon which relief can be granted" [24] under Rule 12(b)(6), for example, the court must determine the sufficiency of the plaintiff's pleadings.

The Court has interpreted and explained Rule 8(a)(2) in response to 12(b)(6) motions to dismiss. In Conley v. Gibson, [25] the Court adopted a notice pleading standard. "[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim." [26] Rather, a complaint simply must contain enough information to provide notice of the crux of the claim. Under Conley, "a complaint should not be dismissed for...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT