Prof. Sherwin Posts Article on Pre-Conley Pleading Debate

Professor Emily L. Sherwin has recently Posted an Article entitled The Jurisprudence of Pleading: Rights, Rules, and Conley v. Gibson on SSRN. Here is the Abstract:

In 1957, in the case of Conley v. Gibson, the Supreme Court announced a minimal standard for the contents of a complaint under the Federal Rules of Civil Procedure and endorsed what has come to be known as 'notice' pleading. This article, prepared for a symposium on Conley, reviews the debate over pleading requirements that preceded the case. Unlike modern discussions of pleading, which focus on the level of factual specificity required in complaints, the pre-Conley debate was about the legal content of complaints - an question largely forgotten in the years following Conley.

The early twentieth century debate over pleading was at least in part a jurisprudential debate, waged between legal formalists and Legal Realists. The different interpretations the two camps gave to the pleading rules under the Field Code and, later, the Federal Rules, reflected their differing views of the role of positive law in adjudication. Formalists believed that a viable complaint must set out a theory of recovery, or 'cause of action,' based on existing rules of law. Legal Realists believed that the rules governing complaints should allow plaintiffs to present their stories to the courts and courts to do justice according to the facts that evolved at trial. The formalist view made legal claims dependent on supporting rules of substantive law, and so increased the chances that the course of litigation, and the resolution of litigated disputes, would be governed by articulable legal rules. The Legal Realist view loosened the grip of substantive law on trials, favoring instead a mode of adjudication in which judges aimed for just outcomes, case-by-case.

The article sets out my interpretation of the pre-Conley pleading debate, then describes the rather haphazard way in which the debate was resolved. It concludes with some brief comments on the implications the early debate for civil rights litigation.

A full-text version of the Article may be downloaded by visiting http://ssrn.com/abstract=1147766.