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Iqbal: High court reins in liberal pleading

And a furor erupts in academic and [not necessarily entirely overlapping] plaintiff-oriented circles:

To declare my own sympathies: in my first book, The Litigation Explosion (1991), I argued at length that the system of notice pleading, in which the barest and least informative allegations are enough to get into court, is high on the list of factors contributing to our national oversupply of litigation. That doesn't necessarily imply that any one way of fixing things, or of narrowing or winnowing out lawsuits at the pleadings stage, is the right way; interestingly, no less a figure than Richard Epstein has written a SSRN paper somewhat critical of the high court's Twombly decision, of which Iqbal is an extension. But it does mean I tend toward impatience with the notion that everything was fine in the Conley v. Gibson era, and that if opponents who have done nothing wrong happen to be ruined by the cost of responding to vague, conclusory and shifting allegations, well, you can't make an omelet without breaking eggs etc.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.