Twombly and Iqbal Reconsidered

INTRODUCTION Perhaps the most controversial decisions thus far from the United States Supreme Court under Chief Justice John Roberts may have been in the usually mundane area of civil procedure. (1) In a pair of decisions two years apart, Bell Atlantic Corp. v. Twombly (2) and Ashcroft v. Iqbal, (3) the Court made a jarring shift in its jurisprudence on what plaintiffs need to plead in their complaints in order to keep their suits from being dismissed at the very outset of litigation. These decisions have been described as "the most significant ... in a decade for day-to-day litigation in the federal courts...." (4) Indeed, the decisions are on pace to become the most cited Supreme Court cases of all time. (5) And the scholarly criticism of the two cases has been withering. (6) In particular, commentators believe the decisions will spark a revolution in federal court litigation, and they have criticized the decisions as gifts to the business community that were delivered by judicial fiat. According to commentators, the Court ignored, distinguished, or disavowed long-standing precedents in order to find new meaning in the text of a Federal Rule of Civil Procedure--Rule 8(a)--that reads today as it has since 1938. As far as these commentators are concerned, these decisions are nothing short of "conservative judicial activism." (7) Although I agree with some of this criticism, I think some of it is overstated. First, Twombly and Iqbal may not be nearly as revolutionary as first meets the eye; as a practical matter, lower federal courts long ago elevated pleading standards in the face of the exponential increases in discovery costs faced by corporate defendants. Second, charges of "judicial activism" in this context have a bit less salience than they do in the more typical contexts in which they are made--contexts in which the Court has usurped the authority of another branch of government--because the text the Court reinterpreted in these decisions was a Federal Rule of Civil Procedure, something that the Court itself promulgated and can change at any time. Finally, I think the Court's motives in Twombly and Iqbal--to recalibrate plaintiffs' discovery rights in light of the exponential increases in discovery costs that have developed in the years since the Federal Rules were first promulgated in 1938--were pure, even if its methods were not. In Part I of this Essay, I describe the Court's decisions in Twombly and Iqbal and how they represent a break in the Court's pleading jurisprudence. In Part II, I respond to the criticism of Twombly and Iqbal as revolutionary, conservative judicial activism. In Part III, I argue that, although the Court's motives in Twombly and Iqbal were pure, there may be better responses than elevated pleading standards to the challenges of discovery that only Congress can impose, such as fee-shifting rules. I. FROM "MERE NOTICE" TO "NOTICE PLUS PLAUSIBILITY" PLEADING In order to state a claim under Federal Rule of Civil Procedure 8(a), a plaintiffs complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief...." (8) If the plaintiffs complaint does not meet this standard, then the court can dismiss the plaintiffs complaint on a motion by the defendant before the case proceeds any further. (9) If the plaintiffs complaint does meet the requirements of Rule 8(a), then the case can go forward, the plaintiff can take discovery of the defendant, (10) and the defendant usually cannot stop the case again until discovery is completed and a motion for summary judgment is filed. (11) Until 2007, the Supreme Court had been consistent--and usually unanimous--in admonishing lower courts that Rule 8 did not require very much of plaintiffs. Indeed, the Federal Rules were designed to go easy on plaintiffs: one of the motivations behind their adoption in 1938 was to eradicate the treacherous technicalities of common law pleading and replace them with a "liberal" regime called "notice pleading. …