Bell Atlantic v. Twombly and the Future of Pleading in the Federal Courts: A Normative and Empirical Analysis

The Supreme Court’s recent decisions on pleading have created a firestorm of confusion in both legal scholarship and lower court opinions. In this Article, the authors argue that the “new” Supreme Court standard is, in reality, nothing more than what the so-called “notice pleading standard” was always intended to be. Notice pleading was never designed to allow a plaintiff to make unilateral, conclusory assertions of liability as a form of “Open, Sesame” to burden the defendant with mass discovery requests. While the new form of pleading rejected the requirements of “fact pleading”, which had demanded that plaintiffs include specific facts giving rise to defendant’s liability, it would have been absurd for it to go to the other extreme of allowing all complaints to proceed to discovery. What the recent decisions did, and what Rule 8 should always have been construed to demand, was require that the factual allegations in the complaint give rise to “suspect circumstances” (the authors’ language) demonstrating the “plausibility” (the Court’s word) of the defendant’s liability. In this way, the current pleading requirement strikes an appropriate balance between the extremes of fact pleading on the one hand and what can be called “lax” pleading, on the other. The authors proceed to demonstrate how this “suspect circumstances” standard is consistent with the results - if not always the rhetoric - of all of the Supreme Court’s pleading decisions, including Conley v. Gibson.