Friday, January 14, 2011

Prof. Meier Posts Pleading Article on SSRN

Professor Luke Meier (Baylor) has posted an article entitled “Why Twombly is Good Law (But Poorly Drafted) and Why Iqbal Will Be Overturned,” on SSRN. Here is part of the abstract:

In the attempt to decipher what is required to plead a claim for relief in federal court after the Supreme Court’s decisions in Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal, commentators have usually combined these two cases as being part of the same "revolution" in pleading. The Iqbal case is often credited for clearing up lingering questions regarding the scope of the "plausibility" analysis introduced in Twombly. Apart from this issue, however, Twombly and Iqbal have usually been discussed as a cohesive pair. They have been jointly criticized. Occasionally, they have been jointly praised.
The tendency to view Twombly and Iqbal as a collective unit has, unfortunately, interfered with efforts to understand pleading doctrine. The cases have dissimilar analytical foundations. In short, the Twombly decision can be justified as merely an application of preexisting principles regarding pleading; the Iqbal case, however, was wrongly decided and is destined to be overruled. To jointly criticize both opinions is to throw the baby (Twombly) out with the bathwater (Iqbal); to jointly praise both opinions, to continue the analogy, is to miss how dirty the bath water is in which the baby is sitting. Until Twombly and Iqbal are decoupled and considered as separate entities, pleading jurisprudence will continue in a state of disarray.

It is not necessarily surprising that academic commentators have treated Twombly and Iqbal as one-in-the-same. The Court’s Iqbal opinion reads as though it is a simple application of the Twombly decision. It is likely that the Iqbal Court even thought as much. The underlying problem is the Twombly opinion.

The Twombly opinion is muddled on three critical points. All three of these points are necessary to an understanding of the Twombly case. The inarticulate manner in which these points were discussed in Twombly is largely responsible for the confused status of pleading doctrine; it is also the source of the erroneous decision in Iqbal. Because of the ambiguity in the Twombly opinion, it was interpreted by the Iqbal Court in a manner that was inconsistent with prior Supreme Court precedent.

This Article can be downloaded at


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