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Back to the bad old days on pleading?

Make no mistake: the Supreme Court's recent rulings in Twombly and Iqbal offer the best hope in years for curtailing ill-founded litigation and reducing the scope of needless combat in what remains (by focusing and narrowing issues at an early stage and heading off discovery "fishing expeditions"). And they have already provoked a response from some who like things just fine the way they were before [Frankel, American Lawyer ("Plaintiffs Lawyers' Favorite Senator, Arlen Specter, Introduces Iqbal Rollback Legislation"); Blog of Legal Times; Beck & Herrmann ("It's a measure of the political clout that the other side has that, whenever the Supreme Court does something that the plaintiffs' bar doesn't like, a bill gets introduced to change it"); CL&P]

Iqbal/Twombly has predictably brought peals of outrage from some in legal academia (e.g. Howard Wasserman, Prawfsblawg). Adam Liptak reported on the backlash earlier this week in the Times. The most outspoken defenders of the new decisions so far have been Beck & Herrmann, who engage the academic critics here, here and here; see also their new Featured Column for this site, a second Wasserman post and Marcia McCormick, Workplace Prof. And Max Kennerly, taking issue with the general drift of commentary, contends that the impact of the decisions is less than is widely assumed.

Earlier Point of Law coverage can be found here. My first book The Litigation Explosion (1991) devoted an early chapter (ch. 5: "Litigation Made Easy: Suing Without Explaining") to the decline of a meaningful pleadings stage in civil procedure as one of the key procedural innovations by which advocates of expanded litigation ensured that we would get lots of it. And, yes, I do feel just slightly vindicated that a topic that seemed almost entirely historical if not obscure at the time ("You have a chapter on why notice pleading is a bad idea?") has once again made its way back to center stage.

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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.