Federal Pleading Standards in State Court
Authors: Gadson Marcus 
Published: January 2023

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.