The pleading problem. - Free Online Library (2024)

INTRODUCTIONI. FEDERAL PLEADING STANDARDS BEFORE AND AFTER TWOMBLY A. Before Twombly B. The Twombly Decision C. Initial Uncertainty Following Twombly D. The Iqbal DecisionII. PLAUSIBILITY'S PROBLEMSIII. AFTER IQBAL: FIRST PRINCIPLES A. Beyond Plausibility 1. Taking Iqbal's two steps seriously 2. The irony of the plausibility inquiry B. The Most Significant Pre-Twombly Authorities Remain Good Law C. Is Notice Pleading Dead, or Merely Recast? D. An Explanatory Theory of Twombly and IqbalIV. TOWARD A NEW PARADIGM: PLAIN PLEADING A. Misreading Twombly and Iqbal: Allegations Do Not Require Evidentiary Support at the Pleadings Phase B. A Transactional Approach C. Rule 8 and the "Plain Statement" Requirement D. Some "Conclusory" Language Is Not Necessarily Fatal E. A Complaint Need Not Provide Extensive Details About the Underlying Events F. The Line-Drawing ChallengeV. SITUATING PLEADING STANDARDS IN THE POST-IQBAL ERA A. The Purpose of Pleadings B. Pleading Standards and Discovery CostsCONCLUSIONAPPENDIX

INTRODUCTION

Pleading standards are essential to the character of a civiljustice system. If a plaintiff seeking judicial redress is unable toprovide an adequate "statement of the claim" at the pleadingsphase, (1) then that claim is effectively stillborn. There will be nocourt-supervised discovery, no ability to present evidence to a judge orjury, and no hope of obtaining any judicial remedy. The complaint willbe dismissed, without even an obligation on the part of the defendant toadmit or deny the plaintiff's allegations. (2) For all intents andpurposes, that initial pleading is the key to the courthouse door. Ifpleading standards are too strict, the door becomes impenetrable. But ifpleading standards are too lenient, concerns arise that opportunisticplaintiffs without meritorious claims will force innocent parties toendure the burdens of litigation and, perhaps, extract a nuisancesettlement from a cost-conscious defendant who would rather pay to makethe case go away.

For the first seventy years of the Federal Rules of CivilProcedure, pleading standards were widely viewed as "wellestablished" and "relatively straightforward." (3) Buttoday, federal pleading standards are in crisis, thanks to two recentSupreme Court decisions--Bell Atlantic Corp. v. Twombly (4) in 2007 andAshcroft v. Iqbal (5) in 2009. Before these decisions, federal courtsfollowed an approach known as notice pleading, because theplaintiff's complaint must merely "give the defendant fairnotice of what the plaintiff's claim is and the grounds upon whichit rests." (6) In Twombly, however, the Supreme Court appeared toendorse a new paradigm--plausibility pleading (7)--that would imposehigher burdens on plaintiffs at the pleadings phase. Twombly involved amassive antitrust class action that hinged on whether the defendants hadagreed amongst themselves to restrain competition. The Court dismissedthe claim because the complaint lacked allegations "plausiblysuggesting" that such an agreement had occurred. (8)

Twombly has been so influential that it is already among the mostfrequently cited Supreme Court decisions of all time. (9) It hasgarnered considerable scholarly attention as well. (10) The debate overpleading standards that Twombly inspired has only intensified after lastTerm's five-to-four decision in Ashcroft v. Iqbal. Relying heavilyon Twombly, the Iqbal majority dismissed a civil rights complaint filedagainst former Attorney General John Ashcroft and FBI Director RobertMueller by a Pakistani man who had been detained during the weeksfollowing the September 11th attacks. Iqbal held that discriminatoryanimus on the part of Ashcroft and Mueller was "not a plausibleconclusion" in light of the complaint's allegations,emphasizing that the inquiry into plausibility is "acontext-specific task that requires the reviewing court to draw on itsjudicial experience and common sense." (11)

Twombly's approach to pleading has been widely criticized asinconsistent with prior Supreme Court decisions, contrary to the text ofthe Federal Rules of Civil Procedure, and having destructive policyconsequences in terms of litigants' access to the federal courts.Concerns about Twombly have been exacerbated by Iqbal, which eliminatedany hope that Twombly might be narrowly confined to complex antitrustcases. (12) The current discourse, however, threatens to makeIqbal's (and Twombly's) effect on pleading standards aself-fulfilling prophecy, Iqbal's critics excoriate the Court fordiscarding the lenient, pre-Twombly approach. Iqbal's supporterspraise the Court for doing precisely that. (13) But little attention isgiven to whether this is, in fact, the correct way to read these cases.(14)

This Article challenges the conventional wisdom that Iqbal andTwombly run roughshod over a half-century's worth of accumulatedwisdom on pleading standards. When one reads Iqbal and Twombly in tandemwith their textual and precedential context, two principles emerge.First, the most significant pre-Twombly authorities are still good law.The only aspect of prior case law that Twombly and Iqbal set aside was amisunderstood fifty-year-old phrase whose real meaning was never calledinto question. (15) Second, the primary inquiry at the pleadings phaseis not a claim's "plausibility," but rather whether anecessary element of a plaintiff's claim is alleged in the form ofa "mere legal conclusion." Indeed, the plausibility inquirycan be avoided entirely. As long as a complaint contains nonconclusoryallegations for every element of a claim for relief, it passes musterregardless of whether the judge might label the allegations implausible.Plausibility comes into play only when an allegation necessary to theplaintiff's claim is disregarded as conclusory (or is missingentirely). The inquiry then becomes whether the remaining, nonconclusoryallegations make it plausible that an actionable claim exists. (16)

In short, only conclusoriness is a basis for refusing to accept thetruth of an allegation; implausibility is not. The key question goingforward, therefore, is how to assess whether an allegation may bedisregarded as conclusory under the Iqbal framework. One answer is todefine conclusory in transactional terms: an allegation is conclusoryonly when it fails to identify adequately the acts or events thatentitle the plaintiff to relief from the defendant. What made thecrucial allegations in Iqbal and Twombly impermissibly"conclusory" were legitimate (though certainly debatable)questions about whether those allegations were grounded in a series ofreal-world events. An allegation cannot, however, be deemed conclusorymerely because the truth of that allegation is not suggested by someother allegation in the complaint. Such an approach would essentiallyrequire pleadings to contain evidentiary support for the allegationscontained therein, which would be flatly inconsistent with pre-Twomblyprecedent and the text and structure of the Federal Rules. It would alsobe conceptually unworkable, because each new allegation offered tosupport an earlier allegation would itself require support; if taken toits logical extent, an evidentiary approach imposes on courts an endlesscascade of inquiry that can never be satisfied. Atransactional-narrative approach, on the other hand, explains why thefamiliar exemplars of the notice pleading era are permissible, (17) butthe complaints in Iqbal and Twombly arguably fall short. (18) It istherefore able to maintain consistency with both the text of the FederalRules and the Supreme Court's pre-Twombly pleading decisions, whileavoiding the unfortunate policy consequences that many critics ofTwombly and Iqbal fear.

These arguments should not be read as praise for the Court'sdecisions in Twombly and Iqbal. At best, Twombly and Iqbal appear to beresult-oriented decisions designed to terminate at the earliest possiblestage lawsuits that struck the majorities as undesirable. (19) And itwas irresponsible for the Court to invite the controversial"plausibility" concept into pleading doctrine in a way thathas led to such widespread confusion. Courts should not, however,compound these problems by misreading Twombly and Iqbal to drasticallychange federal pleading standards going forward.

Part I of this Article describes federal pleading standards beforeTwombly, and then summarizes the Supreme Court's reasoning in bothTwombly and Iqbal. Part II describes the conventional understanding thatTwombly and Iqbal make "plausibility" the principal inquiry atthe pleadings phase, and argues that such an approach would indeed beproblematic. Part III argues that properly understood, the post-Iqbalpleading framework is not fundamentally in conflict with noticepleading, because the most significant pre-Twombly authorities onfederal pleading remain good law and because the troublesomeplausibility standard is rendered irrelevant when a plaintiff providesnonconclusory allegations for each element of a claim. Part IV focuseson Iqbal's most pressing doctrinal question--how to determinewhether a particular allegation may be disregarded as"conclusory," i.e., a mere legal conclusion. It argues thatdefining conclusory in transactional terms would reconcile Twombly andIqbal with binding pre-Twombly authority, and rejects the idea thatallegations are conclusory just because they lack evidentiary support atthe pleadings phase. It then proposes a new paradigm--plainpleading--that provides a textual foundation for this approach. Whileline-drawing challenges will inevitably remain, these challenges wouldpersist even under a traditional notice-pleading framework. Part Vdevelops a deeper theory of the role pleadings ought to play in civiladjudication, and confronts the relationship between pleading standardsand discovery costs that drives so much of the contemporary debate.

I. FEDERAL PLEADING STANDARDS BEFORE AND AFTER TWOMBLY

The current crisis in federal pleading standards stems in largepart from the inability to reconcile the liberal approach that governedduring the first several decades of the Federal Rules of Civil Procedurewith the seemingly stricter approach the Supreme Court employed inTwombly and Iqbal. This Part summarizes the notice pleading standardthat characterized the pre-Twombly era, and then describes in detail theCourt's decisions in Twombly and Iqbal.

A. Before Twombly

For more than a half-century, the Federal Rules of Civil Procedurewere read as adopting an approach to pleading known as notice pleading.This paradigm was grounded on Rule 8's command that a complaintneed only provide "a short and plain statement of the claim showingthat the pleader is entitled to relief." (20) In the landmark caseof Conley v. Gibson, (21) the Supreme Court made clear that "theFederal Rules of Civil Procedure do not require a claimant to set out indetail the facts upon which he bases his claim." (22) Rather, acomplaint is sufficient as long as it "give[s] the defendant fairnotice of what the plaintiff's claim is and the grounds upon whichit rests." (23)

The Court repeatedly stressed that this approach flows directlyfrom the text of Rule 8. Its unanimous 1993 decision in Leatherman v.Tarrant County (24) held: "Rule 8(a)(2) requires that a complaintinclude only 'a short and plain statement of the claim showing thatthe pleader is entitled to relief.' In Conley v. Gibson, we said ineffect that the Rule meant what it said." (25) The Forms providedin the Rules' appendix, which are deemed to "suffice underthese rules and illustrate the simplicity and brevity that these rulescontemplate," (26) confirm this lenient approach. One exemplar isForm 11, which provides that a negligence complaint satisfies Rule 8 byalleging: "On <Date>, at <Place>, the defendantnegligently drove a motor vehicle against the plaintiff." (27)

Just five years before Twombly, the Supreme Court's unanimousdecision in Swierkiewicz v. Sorema N. A. (28) provided a full-throatedendorsem*nt of this approach. Per Justice Thomas, the Court found itsufficient for an employment discrimination plaintiff to allege that his"age and national origin were motivating factors in [thedefendant's] decision to terminate his employment." (29) Theinquiry at the pleadings phase is not whether the plaintiff willultimately prevail on its claim. (30) The inquiry is not whether theplaintiff has or was likely to uncover evidence to support theallegations in the complaint. (31) Rather, the Court recognized that aplaintiff might need the discovery process to obtain the evidence hewill ultimately use to support the allegations in the complaint.Therefore, a plaintiff's lack of supporting evidence at the timethe complaint is filed was not fatal--such evidence could be obtainedthrough discovery. (32) The Swierkiewicz Court was fully aware that thisliberal pleading standard could permit unmeritorious claims to survivethe pleadings phase and trigger the pretrial discovery process. (33) Butit held that this approach was mandated by the language of Rule 8; astricter pleading standard "'is a result that must be obtainedby the process of amending the Federal Rules, and not by judicialinterpretation.'" (34)

Before Twombly, it was clear that this approach to pleadinggoverned all actions in federal court, except for a discrete number ofissues for which a stricter standard was explicitly imposed by statuteor rule. (35) Toward the close of the twentieth century, judges in thelower federal courts would occasionally attempt to read Rule 8'sgeneral pleading standards more strictly, (36) but such efforts wereconsistently rebuffed by the Supreme Court in unequivocal terms. (37)Then came Twombly.

B. The Twombly Decision

The Supreme Court's 2007 decision in Bell Atlantic Corp. v.Twombly involved an antitrust class action of gargantuan proportions.The plaintiffs alleged that America's largest telecommunicationsfirms (the so-called "Baby Bells" or "ILECs" (38))had violated [section] 1 of the Sherman Antitrust Act by engaging inanticompetitive "parallel conduct"--refusing to competeagainst one another in their respective regional markets--and byrestraining other potential competitors (the non-Baby Bells or"CLECs" (39)) wishing to access those markets. (40) Themarkets affected by these alleged violations were so vast that theplaintiff class would have comprised over ninety percent of everyone inAmerica who had subscribed to either local telephone or high-speedinternet service. (41)

A [section] 1 Sherman Act claim exists only when thedefendants' anticompetitive behavior is pursuant to a"contract, combination, or conspiracy." (42) As to thiselement, the Twombly complaint stated: "Plaintiffs allege uponinformation and belief that [the ILECs] have entered into a contract,combination or conspiracy to prevent competitive entry in theirrespective local telephone and/or high speed internet services marketsand have agreed not to compete with one another and otherwise allocatedcustomers and markets to one another." (43) The defendants moved todismiss the complaint, challenging the adequacy of the plaintiffs'conspiracy allegations. (44) The district court granted the motion anddismissed the case, (45) but the Second Circuit reversed. (46) WithJustice Souter writing for the majority, the Supreme Court ruledseven-to-two that the plaintiffs' complaint was insufficient andmust be dismissed. (47)

The Court recognized the complaint's allegations that therehad, in fact, been a "contract, combination, or conspiracy,"(48) but it held that "on fair reading these are merely legalconclusions resting on the prior allegations" of parallel conduct.(49) More was required to comply with federal pleading standards. Thecomplaint must contain "allegations plausibly suggesting (notmerely consistent with) agreement" (50) or, phrased slightlydifferently, "facts that are suggestive enough to render a[section] 1 conspiracy plausible." (51) The "[f]actualallegations must be enough to raise a right to relief above thespeculative level." (52)

Measured by these metrics, the Twombly complaint was insufficient.The Court gave particular attention to the plaintiffs' allegationsthat the defendants had engaged in a "parallel course ofconduct" (53) to restrain competition, such as by "makingunfair agreements" with CLECs wishing to access their networks; by"providing inferior connections to the networks, overcharging, andbilling in ways designed to sabotage the CLECs' relations withtheir own customers"; and by their "common failuremeaningfully to pursue attractive business opportunities in contiguousmarkets where they possessed substantial competitive advantages."(54) The Court noted, however, that antitrust law does not forbid suchparallel conduct that is the product of each actor's"independent decision" rather than "an agreement, tacitor express," between competitors. (55)

Furthermore, such parallel conduct is "a common reaction offirms in a concentrated market" and entirely consistent with"a wide swath of rational and competitive business strategyunilaterally prompted by common perceptions of the market." (56)

The Court also expressed concern about the discovery costs thatwould result if the plaintiffs' claim in Twombly were allowed toproceed past the pleadings phase, (57) noting that "antitrustdiscovery can be expensive" and worrying that "the threat ofdiscovery expense will push cost-conscious defendants to settle evenanemic cases." (58) It added that "it is only by taking careto require allegations that reach the level suggesting conspiracy thatwe can hope to avoid the potentially enormous expense of discovery incases with no reasonably founded hope that the discovery process willreveal relevant evidence." (59) In addition, the Court critiquedand "retire[d]" (60) its statement from the landmark 1957decision in Conley v. Gibson that "a complaint should not bedismissed for failure to state a claim unless it appears beyond doubtthat the plaintiff can prove no set of facts in support of his claimwhich would entitle him to relief." (61) It declared this phrase tobe "best forgotten," (62) fearing that "a focused andliteral reading" of it would mean that "a wholly conclusorystatement of claim would survive a motion to dismiss whenever thepleadings left open the possibility that a plaintiff might laterestablish some set of undisclosed facts to support recovery." (63)

The Court thus concluded that "an allegation of parallelconduct and a bare assertion of conspiracy will not suffice." (64)Rather, "further factual enhancement" was required to cross"the line between possibility and plausibility of entitlement torelief." (65) The Court's final sentence echoed this notion:"Because the plaintiffs here have not nudged their claims acrossthe line from conceivable to plausible, their complaint must bedismissed." (66)

C. Initial Uncertainty Following Twombly

The dismissal of a complaint based on the plaintiffs' failureto "nudge[] their claims across the line from conceivable toplausible" sent shockwaves throughout the legal community--foracademics, (67) practitioners, (68) and judges (69) alike. Many soughtways to confine Twombly to its particular facts. One theory was thatTwombly's approach applied only to complex antitrust claims, whilethe more lenient notice pleading approach continued to apply moregenerally. (70) Another was that Twombly applied only when the plaintiffhad pied itself out of court by resting its claim on an impermissibletheory. (71)

The idea that Twombly might be narrowly confined gained addedpurchase when the Supreme Court issued a per curiam decision in Ericksonv. Pardus (72) just two weeks after Twombly. The Erickson opinion usedstandard pre-Twombly pleading principles to reverse a lower court'sdismissal of a prisoner's Eighth Amendment claim based on impropermedical treatment, without any inquiry into the "plausibility"of the plaintiff's allegations. (73) Some surmised that the Courthad deliberately "held" the Erickson decision so that it wouldcome out after Twombly and thereby serve "as a reassurance that[Twombly] had not altered Rule 8(a)(2) pleading principles." (74)

Any hope that Erickson signaled the Supreme Court'swillingness to restrict the scope of Twombly did not last long, however.(75) In 2009, three days shy of Twombly's second anniversary, theCourt decided Ashcroft v. Iqbal. (76) As the next Subpart describes,Iqbal removes any doubt that Twombly reflects the generally applicablepleading standard in federal court.

D. The Iqbal Decision

The Court in Ashcroft v. Iqbal divided sharply over the impact ofTwombly on a civil rights lawsuit brought by a Pakistani man whomfederal officials had detained in New York City during the weeksfollowing the September 11th attacks. (77) Designated as a "person'of high interest'" in the September 11th investigation,Iqbal alleged that he had been held under harsh and highly restrictiveconditions of confinement at the Administrative Maximum Special HousingUnit (ADMAX SHU) of the Metropolitan Detention Center in Brooklyn. (78)Iqbal's Bivens action challenged several aspects of his detentionand named many government officials as defendants, but the only claimsbefore the Supreme Court were Iqbal's claims against formerAttorney General John Ashcroft and FBI Director Robert Mueller. (79)These claims were based on a theory that Ashcroft and Mueller had"adopted an unconstitutional policy that subjected [Iqbal] to harshconditions of confinement on account of his race, religion, or nationalorigin." (80) In a five-four decision, the Court held thatIqbal's claims against Ashcroft and Mueller did not satisfy federalpleading standards. (81)

The majority began by describing the substantive elements of aBivens claim like the one pursued against Ashcroft and Mueller. Itclarified that "Government officials may not be held liable for theunconstitutional conduct of their subordinates under a theory ofrespondeat superior. Because vicarious liability is inapplicable..., aplaintiff must plead that each Government-official defendant, throughthe official's own individual actions, has violated theConstitution." (82) For a constitutional claim based on invidiousdiscrimination, "the plaintiff must plead and prove that thedefendant acted with discriminatory purpose." (83) Suchdiscriminatory purpose "requires more than 'intent as volitionor intent as awareness of consequences.'" (84) Rather, thedefendant must act "because of, not merely in spite of, [theaction's] adverse effects upon an identifiable group." (85)

Turning to general pleading requirements, the Iqbal majority beganby generously quoting Twombly: "A pleading that offers 'labelsand conclusions' or 'a formulaic recitation of the elements ofa cause of action will not do.' Nor does a complaint suffice if ittenders 'naked assertion[s]' devoid of 'further factualenhancement.'" (86) Rather, "a complaint must containsufficient factual matter, accepted as true, to 'state a claim torelief that is plausible on its face.'" (87)

For the Iqbal majority, there was a critical distinction to bedrawn between two types of allegations that might appear in a complaint.On one hand are "legal conclusions" or "mere conclusorystatements." (88) Such allegations may be ignored when assessingthe sufficiency of a complaint. (89) As the majority explained,"the tenet that a court must accept as true all of the allegationscontained in a complaint is inapplicable to legal conclusions";(90) therefore, "[t]hreadbare recitals of the elements of a causeof action, supported by mere conclusory statements, do notsuffice." (91) On the other hand are "factualallegations" or "well-pleaded facts." (92) Theseallegations must be assumed true at the pleading phase. (93) Thedispositive question is then whether those "well-pleaded factualallegations"--accepted as true--"plausibly give rise to anentitlement to relief." (94)

Turning to the plaintiff's claims against Ashcroft andMueller, the Iqbal majority focused on the following allegations in thecomplaint:

(1)Paragraph forty-seven's allegation that "[i]n themonths after September 11, 2001, the Federal Bureau of Investigation('FBI'), under the direction of Defendant MUELLER, arrestedand detained thousands of Arab Muslim men ... as part of itsinvestigation of the events of September 11." (95)

(2) Paragraph sixty-nine's allegation that "[t]he policyof holding post-September-11th detainees in highly restrictiveconditions of confinement until they were 'cleared' by the FBIwas approved by Defendants ASHCROFT and MUELLER in discussions in theweeks after September 11, 2001." (96)

(3) Paragraph ninety-six's allegation that Ashcroft andMueller "each knew of, condoned, and willfully and maliciouslyagreed to subject Plaintiffs to [harsh] conditions of confinement as amatter of policy, solely on account of their religion, race, and/ornational origin and for no legitimate penological interest." (97)

(4) Paragraphs ten and eleven's allegations that Ashcroft"is a principal architect of the policies and practices challengedhere" and Mueller "was instrumental in the adoption,promulgation, and implementation of the policies and practiceschallenged here." (98)

The majority found the last two of these allegations (paragraphsninety-six and ten through eleven) were "not entitled to theassumption of truth" because they were "bare assertions, muchlike the pleading of conspiracy in Twombly, [that] amount to nothingmore than a 'formulaic recitation of the elements' of aconstitutional discrimination claim." (99) It then turned to theother allegations (paragraphs forty-seven and sixty-nine) "todetermine if they plausibly suggest an entitlement to relief."(100) The majority concluded that the mere fact that many Arab Muslimshad been arrested did not plausibly suggest that those arrests were theresult of "purposeful, invidious discrimination." (101) Itwrote:

 The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim--Osama bin Laden--and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims.... (102)

The Iqbal majority added that Iqbal's claims against Ashcroftand Mueller "rest solely on their ostensible 'policy ofholding post-September-11th detainees' in the ADMAX SHU once theywere categorized as 'of high interest.'" (103) Thecomplaint contained no allegation at all that Ashcroft or Muelleradopted this policy for discriminatory purposes. (104) And the mereadoption of a policy "approving 'restrictive conditions ofconfinement' for post-September-11 detainees until they were'cleared by the FBI'" (105) did not plausibly suggestpurposeful discrimination. Therefore, Iqbal's complaint wasinsufficient.

In reaching these conclusions, the Iqbal majority effectively putan end to arguments that might have cabined the Twombly approach topleading. Most significantly, it rejected the notion that Twombly shouldbe "limited to pleadings made in the context of an antitrustdispute." (106) The majority wrote:

 This argument is not supported by Twombly and is incompatible with the Federal Rules of Civil Procedure. Though Twombly determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and application of Rule 8. That Rule in turn governs the pleading standard "in all civil actions and proceedings in the United States district courts." (107)

It concluded: "Our decision in Twombly expounded the pleadingstandard for 'all civil actions,' and it applies to antitrustand discrimination suits alike." (108)

II. PLAUSIBILITY'S PROBLEMS

The conventional wisdom is that Twombly and Iqbal herald a new erafor federal pleading standards; they have discarded the liberal,notice-pleading paradigm that prevailed for over a half-century in favorof a new paradigm of plausibility pleading. (109) In this regime, ajudge may dismiss a claim just because the allegations strike him or heras implausible--not based on any testimony or other evidence, but merelyby drawing on his or her "judicial experience and commonsense." (110) The continued vitality of classic pre-Twomblyauthorities (e.g., Form 11 (111) and Swierkiewicz (112)) is in doubt.

The apparent consensus about the effect of Twombly and Iqbal onfederal pleading standards does not, to say the least, entail a broadaccord on their normative desirability. Twombly and Iqbal have earnedboth high praise and deep scorn, reflecting the sharp divide overwhether, as a policy matter, courts ought to be able to scrutinizeallegations more closely at the pleadings phase. At the core of thisconsequentialist debate over pleading standards is a struggle to balancethe costs and benefits of pre-trial discovery. If pleading standards aretoo lenient, plaintiffs without meritorious claims could force innocentdefendants to endure the costs of discovery and, perhaps, extract anuisance settlement from a defendant who would rather pay the plaintiffto make the case go away. (113) The need to avoid this situation is acommonly asserted policy justification for stricter pleading standards.(114) The Twombly majority itself expressed concern that "thethreat of discovery expense" could encourage "cost-consciousdefendants to settle even anemic cases before reaching thoseproceedings." (115)

To use the plausibility inquiry employed by Twombly and Iqbal as apre-discovery screening device is deeply problematic, however. First, itcan thwart meritorious claims by plaintiffs who, without the discoveryprocess, cannot obtain the information needed to satisfy theplausibility requirement. (116) For many kinds of claims, the crucialinformation needed to confirm a claim's "plausibility"will be in the hands or mind of the defendant and, therefore, canrealistically be obtained only through the pretrial discovery process. Aplausibility paradigm would dismiss a claim precisely for lack of suchinformation and, thereby, prevent that information from ever beinguncovered. (117) Indeed, a defendant could obtain such a dismissalwithout even having to deny the truth of the plaintiff'sallegations. (118)

Relatedly, the argument that stricter pleading standards are neededto avoid incurring high discovery costs on meritless claims presumesthat stricter pleading standards are, in fact, well-suited toidentifying which claims are meritorious enough to justify the costs ofthe discovery process. (119) This premise is especially subject toquestion in light of the guidance the Supreme Court has so far providedon how courts ought to apply the plausibility standard--under onearticulation, a judge is merely to read the complaint and then"draw on its judicial experience and common sense" todetermine whether a claim is sufficiently "plausible." (120)On its own terms, this inquiry places few constraints on judges andembraces a dangerous amount of subjectivity. (121) The odds of thisplausibility test yielding accurate results seem particularly low whenthe information needed to firmly gauge a case's merit is in thedefendant's possession and, therefore, inaccessible withoutrecourse to the discovery process. (122)

Given the problems inherent in a pleading paradigm fixated onplausibility, one must ask whether the potentially high costs ofdiscovery can be contained by other means. They can. As Justice Stevensexplained in his Twombly dissent, federal district courts are endowedwith a significant "case-management arsenal," such that themere potential for expensive discovery "is no reason to throw thebaby out with the bathwater." (123) The Federal Rules explicitlyallow courts to restrict discovery in order to balance its likely costsand benefits, (124) although defenders of stricter pleading standardsquestion whether federal judges are willing to employ these tools. (125)

Thus, a tremendous amount is at stake in the struggle to definefederal pleading standards after Twombly and Iqbal. The remainder ofthis Article explores this question. Fortunately, a careful reading ofTwombly and Iqbal reveals that plausibility is not in fact the primaryinquiry at the pleadings phase. It is not even a necessary one. When onelooks closely at the analytical structure of the Twombly and Iqbaldecisions, along with the textual and precedential landscape in whichthey arose, an approach to pleading emerges that does not create theproblems just described.

III. AFTER IQBAL: FIRST PRINCIPLES

Read carefully, Twombly and Iqbal support two core principles that,given the conventional reaction to these decisions, may seem surprising.First, the justifiably criticized "plausibility" inquiry isnot in fact the primary inquiry at the pleadings phase. UnderIqbal's two-step framework, the plausibility inquiry becomesirrelevant if a plaintiff provides nonconclusory allegations for eachelement of a claim for relief. Second, the most significant pre-Twomblyauthorities on federal pleading standard are still good law in thepost-Iqbal era. These two principles confirm that Iqbal's frameworkis not in fundamental conflict with notice pleading. Although many inferfrom Twombly and Iqbal a desire by the Court to impose a stricterpleading standard, this Part explains why the Twombly and Iqbalmajorities might have been inclined to dismiss those particularcomplaints without abandoning the approach to pleading that hadprevailed for more than a half-century.

A. Beyond Plausibility

Iqbal's analytical structure reveals that plausibility is notthe primary issue when evaluating the sufficiency of a complaint.Rather, plausibility is a secondary inquiry that need not be undertakenat all if a complaint provides nonconclusory allegations for eachelement of a claim for relief.

1. Taking Iqbal's two steps seriously Iqbal's two-stepframework for evaluating the sufficiency of a complaint proceeds asfollows:

(1) Identify allegations that are conclusory, and disregard themfor purposes of determining whether the complaint states a claim forrelief.

(2) Determine whether the remaining allegations, accepted as true,plausibly suggest an entitlement to relief. (126)

This framework confirms that a judge is not supposed to make afreeform inquiry into whether the allegations in the complaint are"plausible" or otherwise comport with his or her"judicial experience and common sense." (127) Rather, thethreshold issue is to identify allegations that may be disregardedbecause they are "conclusory."

The Court's treatment of Iqbal's complaint confirms thisapproach. The crucial allegation was paragraph ninety-six, which allegedthat Ashcroft and Muller "each knew of, condoned, and willfully andmaliciously agreed to subject Plaintiffs to [harsh] conditions ofconfinement as a matter of policy, solely on account of their religion,race, and/or national origin." (128) According to Iqbal, theproblem with this allegation was its "conclusory nature," notit* lack of plausibility. (129) Plausibility came into play only becausethe Iqbal majority--by disregarding paragraph 96 as conclusory--excisedfrom the complaint the allegation of Ashcroft's and Mueller'sdiscriminatory motive. It therefore treated the complaint as making noallegation of discriminatory motive, and proceeded to inquire whetherthe remaining allegations were not merely "consistent with"but affirmatively suggestive of discriminatory intent. (130) Under themajority's analytical structure, it was as if the plaintiff hadsolely alleged that "thousands of Arab Muslim men" (131) hadbeen detained following 9/11, and had never alleged discriminatorymotive. From this perspective, the Iqbal majority concluded that the"disparate, incidental impact on Arab Muslims"--with no validallegation of actual discriminatory intent--was not sufficient to"plausibly establish" invidious discrimination. (132)

A careful reading of Twombly reveals the same analytical structure.(133) Twombly held that "an allegation of parallel conduct and abare assertion of conspiracy will not suffice." (134) Because"a conclusory allegation of agreement at some unidentified pointdoes not supply facts adequate to show illegality," (135) Twomblydisregarded the complaint's conspiracy allegation. (136) Only thendid Twombly proceed to inquire whether what remained--namely, the"allegations of parallel conduct"--had been "placed in acontext that raises a suggestion of a preceding agreement, not merelyparallel conduct that could just as well be independent action."(137)

Thus, the key allegations in both Iqbal and Twombly were notdisregarded because they were implausible. They were disregarded becausethey were conclusory. This forced the Court to inquire whether theallegations that remained--standing alone--plausibly suggested theexistence of a discriminatory motive (Iqbal) or a conspiracy (Twombly).As long as an allegation is not conclusory, however, it must be acceptedas true for purposes of determining whether the complaint states a claimfor relief, without any inquiry into whether the allegation itself is"plausible," and without any opportunity for a judge tooverride the allegation merely by drawing on his or her "judicialexperience and common sense." (138)

It follows that when a complaint contains nonconclusory allegationson every element of a claim for relief, the plausibility issue vanishescompletely. Recall that step two of the Iqbal framework is to determinewhether the nonconclusory allegations, accepted as true, plausiblysuggest an entitlement to relief. (139) A complaint that fails toprovide nonconclusory allegations on every element might nonethelesspass muster if it contains enough to plausibly suggest an entitlement torelief. But a complaint that does provide nonconclusory allegations onevery element of a claim, by definition, exceeds the threshold ofplausibly suggesting an entitlement to relief for purposes of Iqbal steptwo. Iqbal made clear that, at the second step, the court must"assume the[] veracity" of such nonconclusory allegations.(140) If such allegations address each element that would be needed toultimately prove the plaintiff's claim, then they do more than makean entitlement to relief "plausible"--they confirm anentitlement to relief, at least for purposes of the pleadings phase.(141)

To illustrate this point, assume that (1) a viable claim depends onestablishing X, and (2) the complaint contains nonconclusory allegationsthat X happened. In this situation, the step-two inquiry becomes"Assuming X is true, is it plausible that X happened?" As amatter of logic, the answer to that question is always yes. It is morethan just plausible that X happened; it is conclusively established thatX happened, albeit by the assumption that step two itself requires.(142)

The idea that implausibility (rather than conclusoriness) isgrounds for disregarding allegations in a complaint is further belied bythe numerous allegations that the Twombly and Iqbal majorities acceptedas true at the pleadings phase. In Twombly, the Court accepted theallegations that the defendants had indeed engaged in parallel conduct,(143) without any inquiry into whether it was plausible that suchparallel conduct had in fact occurred. The Iqbal majority acceptedallegations that "the [FBI], under the direction of [Mueller],arrested and detained thousands of Arab Muslim men ... as part of itsinvestigation of the events of September 11," (144) and that"[t]he policy of holding post-September-11th detainees in highlyrestrictive conditions of confinement until they were'cleared' by the FBI was approved by [Ashcroft and Mueller] indiscussions in the weeks after September 11, 2001." (145) Yet theIqbal majority made no inquiry at all into the plausibility of thoseallegations. The Court's treatment of these allegations confirmsthis Article's understanding of Iqbal's two-step framework.The Court accepted these allegations as true because they werenonconclusory, (146) not because they satisfied the Court'snewfound plausibility test.

Finally, making Twombly and Iqbal's plausibility inquiry abasis for disregarding allegations would be conceptually unworkable. Theplausibility inquiry accepts a certain set of allegations as true, andthen asks whether those allegations "plausibly suggest" anentitlement to relief. (147) To say that an allegation is implausibleunder Twombly and Iqbal is just to say that the allegation is notplausibly suggested by other allegations in the complaint that arepresumed to be true. (148) Because the plausibility inquiry itselfpresumes the truth of some allegations, plausibility cannot also be theex ante method for determining which allegations do and do not need tobe accepted as true. To do so would create an endless cascade of inquirythat, if taken seriously, can never be satisfied. Each allegation thatmight be offered to "plausibly suggest" some other allegationwould itself require support, and so on and so on. (149)

2. The irony of the plausibility inquiry

For the reasons described above, Iqbal's two-step frameworkcontradicts the common view that the "plausibility" inquirygives courts license to disregard allegations in a complaint. Onlyconclusoriness is grounds for refusing to accept an allegation as true(Iqbal step one). Plausibility is grounds for assuming as true somethingthat is not validly alleged in the complaint (Iqbal step two).Conclusoriness is destructive; it justifies disregarding an allegation.Plausibility is generative; it justifies creating an allegation that isnot validly made in the complaint itself (perhaps because it was allegedonly in a conclusory manner).

There is a profound irony in all of this. Properly understood, theplausibility aspect of Twombly and Iqbal makes the pleading standardmore forgiving, not less. Imagine if the Court had just said: mere legalconclusions need not be accepted at the pleadings phase; if thateliminates a crucial element of the claim, then the complaint must bedismissed--even if other allegations plausibly suggest an entitlement torelief. This would not have been unprecedented. Lower federal appellatecourts had long embraced the idea that mere legal conclusions need notbe accepted as true. (150) By definition, this approach would be astricter one than Iqbal, because it would remove entirely thepossibility that the plausibility inquiry could salvage complaints thatotherwise rested on mere legal conclusions. Yet by inviting the term"plausibility" into the pleading lexicon, the Court has openedthe door to a stricter pleading standard, with all of the problemsdescribed above. (151)

It is crucial, therefore, to read the Twombly and Iqbal decisionscarefully. As explained above, those decisions cannot faithfully be readto make a lack of "plausibility" grounds for disregarding acomplaint's allegations. (152) The real impact of Twombly and Iqbalwill be a function of how courts distinguish "mere legalconclusions" (whose truth need not be accepted) from nonconclusoryallegations that are entitled to the presumption of truth. This Articlewill confront that question shortly. (153) But first, it challengesanother myth--the idea that Twombly and Iqbal must be read as castingaside pre-Twombly authority.

B. The Most Significant Pre-Twombly Authorities Remain Good Law

The conventional reading of Twombly and Iqbal assumes that theyhave essentially overruled pre-Twombly authorities on federal pleadingstandards. (154) This view cannot withstand close scrutiny, however.First, the pre-Twombly regime is founded upon the text of the FederalRules of Civil Procedure, and the Court has repeatedly stated thatchanges to the Rules "must be obtained by the process of amendingthe Federal Rules, and not by judicial interpretation." (155)Nothing in the reasoning of either Twombly or Iqbal suggests that theCourt has now claimed for itself the power to amend the Rules via itsadjudicative decision making.

Second, even if the Rules could be reasonably interpreted tosupport the stricter pleading standard that many find in Twombly andIqbal, neither decision purports to overrule the most important aspectsof the Court's pre-Twombly case law. There is only a singleinstance where either Twombly or Iqbal explicitly abrogates earlierprecedent; Twombly put into "retirement" the statement fromConley v. Gibson (156) that "a complaint should not be dismissedfor failure to state a claim unless it appears beyond doubt that theplaintiff can prove no set of facts in support of his claim which wouldentitle him to relief." (157) The Twombly majority read this"beyond doubt ... no set of facts" language as precludingdismissal "whenever the pleadings left open the possibility that aplaintiff might later establish some set of undisclosed facts to supportrecovery." (158) Read this way, Conley's phrase is indeedproblematic. As Professor Richard Marcus once asked, "How can acourt ever be certain that a plaintiff will prove no set of factsentitling him to relief?." (159) If that were truly the test, acomplaint that alleged nothing more than "The planet Earth isround" would survive, because any number of actionable facts mightbe consistent with the Earth being round. That the Twombly majority"retire[d]" this view should not be cause for concern. (160)

To be fair to Justice Black and his Conley opinion, thisnow-discredited phrase was subject to a far more sensible reading. (161)It did not preclude dismissal as long as any set of facts could entitlethe plaintiff to relief (the straw man that Twombly purported to strikedown). Rather, this phrase merely confirmed that speculation about theprovability of a claim is typically not a proper inquiry at thepleadings phase; provability is relevant only when it appears"beyond doubt" that the plaintiff cannot prove her claim.(162) But the Twombly majority itself endorsed this idea; it wrote that"a well-pleaded complaint may proceed even if it strikes a savvyjudge that actual proof of those facts is improbable, and that arecovery is very remote and unlikely." (163) The dispositivequestion is--and always has been--what makes a complaint"well-pleaded"? (164) Conley and Twombly provide precisely thesame answer: "[A]ll the Rules require is 'a short and plainstatement of the claim' that will give the defendant fair notice ofwhat the plaintiff's claim is and the grounds upon which itrests." (165) Twombly not only endorsed this crucial "fairnotice" language from Conley; it also relied on many of theCourt's other pre-Twombly cases, including the unanimousSwierkiewicz decision from just five years earlier. (166)

One federal appellate court has reasoned that Twombly'sdisavowal of Conley's "no set of facts" languageeffectively overrules pre-Twombly decisions, including Swierkiewicz,that had relied on Conley. (167) This logic is deeply flawed, however,and misunderstands the Court's reasoning in both Swierkiewicz andTwombly. Although Swierkiewicz did cite a post-Conley case thatparaphrased Conley's "no set of facts" language, (168) itdid not read this phrase in the overly "focused and literal"way that Twombly rejected. (169) In fact, the phrase played no role atall in the Court's application of the federal pleading standard toSwierkiewicz's complaint. Rather, Swierkiewicz based its holdingexplicitly on Conley's fair-notice principle (170)--the sameprinciple that Twombly itself endorsed. (171) Twombly's rejectionof Conley's "no set of facts" language, therefore, cannotpossibly constitute a rejection of the entire Conley decision and alldecisions that rely on it. (172)

Nonetheless, one might argue that the reasoning in Twombly andIqbal is in such profound conflict with prior precedent that lowercourts ought to deem the earlier cases to have been implicitlyoverruled. (173) But this reading would flout the Supreme Court'srepeated instruction that only it has "the prerogative ofoverruling its own decisions." (174) The upshot is that lowercourts have, essentially, a duty to reconcile Twombly and Iqbal withpre-Twombly case law. To do otherwise would be to overrule pre-TwomblySupreme Court decisions and, thereby, usurp the Supreme Court's"prerogative." (175)

C. Is Notice Pleading Dead, or Merely Recast?

The two previous Subparts show why (a) key notice-pleadingprecedents remain good law after Iqbal, and (b) the"plausibility" of a plaintiff's allegations becomesirrelevant where the complaint provides nonconclusory allegations oneach element of a valid claim. Although Twombly and Iqbal recognize ajudge's power to disregard "conclusory" allegations atthe pleadings phase, this does not necessarily constitute a drasticshift from notice pleading. Even before Twombly, the notice-pleadingparadigm gave judges some power to disregard allegations in a complaint.An allegation that "the defendant violated the plaintiff'slegal rights in a way that entitles the plaintiff to relief' wouldnot have been accepted as true before Twombly; nor would allegationsstating merely that "the defendant violated the plaintiff'srights under Title VII of the 1964 Civil Rights Act" or that"the defendant breached a duty owed to the plaintiff under statelaw and this breach proximately caused damages to the plaintiff."

Under a notice-pleading framework, the problem with suchallegations is that they fail to provide "fair notice of what theplaintiff's claim is and the grounds upon which it rests."(176) But that begs the question of what constitutes "fairnotice." This ambiguity is precisely why Charles Clark never warmedto couching his pleading standard in terms of notice. He wrote:

 The usual modern expression, at least of text writers, is to refer to the notice function of pleadings; notice of the case to the parties, the court, and the persons interested. This is a sound approach so far as it goes; but content must still be given to the word "notice." It cannot be defined so literally as to mean all the details of the parties' claims, or else the rule is no advance. (177)

Judge Clark's observation confirms that a notice-pleadingframework is not inherently a lenient one. It depends on what"content [is] given to the word 'notice.'" (178)Likewise, a pleading standard that allows courts to disregard conclusoryallegations is not inherently a strict one. It depends on how"conclusory" is defined.

Accordingly, Iqbal's recognition that conclusory allegationsneed not be accepted as true does not necessarily mean the end of noticepleading. (179) It merely cloaks the notice inquiry in differentdoctrinal garb. Any approach to pleading that permits a court todisregard allegations that lack some information the court deemsnecessary can be couched in terms of notice. To say that an allegationis "conclusory" because it lacks X is no different than sayingthat "fair notice" requires the defendant to be informed of X.

The need to define "conclusory" in the post-Iqbal eraforces courts to confront the crucial question: what, exactly, must acomplaint contain in order for a particular allegation to be accepted astrue? But that question was always lurking in the uncertaintysurrounding what Conley's "fair notice" standard actuallyrequired. (180) Thus, Iqbal's two-part test does not necessarilyentail a stricter approach, even though it explicitly recognizes theability of courts to disregard conclusory allegations. Again, Twomblyitself endorsed Conley's fair notice standard. (181)

D. An Explanatory Theory of Twombly and Iqbal

To some, the argument that Twombly and Iqbal should be read topreserve a lenient approach to pleading will sound naive. One reason theconventional reading of Twombly and Iqbal has gained such solid purchaseis that it fits the recent tendency of the federal judiciary (and theSupreme Court in particular) to favor defendants, especially corporateand business interests, in civil litigation. (182) From thisperspective, Twombly and Iqbal appear to be more of the same: the Courtgave defendants one more tool for thwarting civil accountability bydiscarding the long-established, liberal pleading framework that wasamong the most notable aspects of the original Federal Rules of CivilProcedure.

One should proceed with caution, however, before translating theCourt's recent pro-defendant leanings into a desire to whollyoverturn the pre-Twombly approach to pleading, especially given theCourt's decision to leave the core precedents of thenotice-pleading era in place. (183) The composition of the Twombly andIqbal Court was largely the same as the one that unanimously, perJustice Thomas, decided Swierkiewicz just five years earlier. TheTwombly/Iqbal Court's failure to challenge such pre-Twombly casesis particularly notable because this Court was in an overruling mood--itwas perfectly willing to "retire[] Conley v. Gibson s no set offacts" language, declaring it to be "best forgotten."(184) That the Court did not similarly retire either Swierkiewicz orConley's "fair notice" principle speaks volumes.

An alternative narrative--to the extent one is necessary(185)--would emphasize the precise facts of Twombly and Iqbal ratherthan a broader doctrinal agenda. Indeed, Twombly and Iqbal were eachrather exceptional cases. Twombly presented a monstrously large classaction that, in the Supreme Court's own words, pitted "aputative class of at least 90 percent of all subscribers to localtelephone or high-speed Internet service in the continental UnitedStates" against "America's largest telecommunicationsfirms (with many thousands of employees generating reams and gigabytesof business records) for unspecified (if any) instances of antitrustviolations that allegedly occurred over a period of seven years."(186) Moreover, the plaintiff class in Twombly was represented by theMilberg Weiss law firm, (187) which had been indicted by federalprosecutors just one month before the Supreme Court granted certiorari.(188) Iqbal involved an action by a Pakistani man convicted ofimmigration-document fraud who was seeking not merely injunctive reliefbut monetary damages against the two highest-ranking law enforcementofficials in the land--the Attorney General and the FBI Director. And itchallenged their efforts on behalf of the federal government in responseto, as the Court put it, "a national and international securityemergency unprecedented in the history of the American Republic."(189)

One can legitimately question whether any of this ought to matterfrom a jurisprudential standpoint. But it would not be surprising thatsome jurists might lean toward dismissing cases like Twombly and Iqbalwithout also wanting to upend pleading standards generally. (190) TheCourt's own language reflects the extraordinary nature of thosecases. (191) The upshot is that the Supreme Court might indeed bereceptive to an approach that brings Twombly and Iqbal into alignmentwith the pre-Twombly regime. (192) In any event, from the lowercourts' perspective, speculation about whether the Court mightoverrule significant pre-Twombly precedents in the future is improper.As explained above, only the Supreme Court has the prerogative ofoverruling its own decisions. (193)

IV. TOWARD A NEW PARADIGM: PLAIN PLEADING

The question that has consistently plagued pleading standards issimple to state but hard to answer: when may a court disregardallegations in a complaint that, if accepted as true, would show thatthe plaintiff is entitled to relief?. In doctrinal terms, this now boilsdown to how to define the term "conclusory" for purposes ofIqbal step one. (194) This Part begins to confront this question. Itfirst considers and rejects a common misreading of the Court'sapproach in Twombly and Iqbal, that is, the idea that a complaint mustsomehow provide evidentiary support for its allegations. It then arguesthat conclusory should be defined in transactional terms, as explainedin greater detail below, and that this understanding reconciles Twomblyand Iqbal with equally authoritative texts and precedents. This Partalso provides a textual foundation for this approach--a paradigm called"plain pleading" that is grounded in Rule 8's requirementof a "short and plain statement of the claim showing that thepleader is entitled to relief." (195)

A. Misreading Twombly and Iqbal: Allegations Do Not RequireEvidentiary Support at the Pleadings Phase

One common misreading of Twombly and Iqbal is that they require acomplaint to contain evidentiary support for its allegations. This viewwould allow a court to disregard an allegation just because its truth isnot suggested by some other allegation. This approach may reflect themisperception that allegations may be disregarded for lack of"plausibility." It is certainly fair to describe theplausibility test that occurs at Iqbal step two as a kind ofevidentiary-sufficiency inquiry. (196) As explained above, however, alack of plausibility is not grounds for disregarding a complaint'sallegation. (197) Only conclusory allegations may be disregarded.Although courts in other contexts suggest that what makes an assertion"conclusory" is a lack of supporting evidence, (198)transplanting this attitude to the pleading phase would be problematicfor several reasons.

The most damning indictment of such an approach comes from theCourt's own reasoning in Twombly and Iqbal. As explained above,(199) those decisions accepted some allegations without regard towhether their truth was suggested by additional allegations in thecomplaint. In Twombly, the Court deemed sufficiently nonconclusory thecomplaint's allegations that the defendants had indeed engaged inparallel conduct, (200) without any inquiry into whether additionalallegations supported their truth. The problem, according to the Twomblymajority, was merely that those allegations failed to plausibly suggestthe existence of a conspiracy. (201) Similarly, the Iqbal majorityaccepted as nonconclusory the complaint's allegations that"the [FBI], under the direction of ... Mueller, arrested anddetained thousands of Arab Muslim men ... as part of its investigationof the events of September 11," (202) and that "[t]he policyof holding post-September-11th detainees in highly restrictiveconditions of confinement until they were 'cleared' by the FBIwas approved by ... Ashcroft and Mueller in discussions in the weeksafter September 11, 2001." (203) In doing so, the Iqbal majoritymade no inquiry at all into whether additional allegations supported thetruth of these allegations.

Under the Federal Rules, the very nature of a complaint makes itconceptually unworkable to insist that allegations be buttressed bysupporting evidence at the pleadings phase. A complaint's"statement" (204) contains merely "allegations"(205) listed in "numbered paragraphs" (206)--not theunderlying evidence in support of each allegation. In this sense, everyallegation in a complaint could be deemed conclusory for lack ofsupporting evidence, because by definition the complaint contains solelyallegations. If a court were to take seriously the idea that allegationsmay be disregarded because the complaint does not also provideevidentiary support for them, then supporting an allegation with moreallegations will never be enough. (207) Each new allegation offered tosupport an earlier allegation would itself require support, and so onand so on. Thus, the existence of evidentiary support for any givenallegation cannot be the test for determining whether an allegationshould be accepted as true. At some point, a court must be able toaccept the allegations in a complaint at face value, and leave thepresence or lack of evidentiary support for later in the proceedings.(208)

Reading Rule 8's general pleading standard as mandating anevidentiary approach would confound the text and structure of theFederal Rules in other ways as well. First, it would conflate thedistinction between a Rule 12(b)(6) motion to dismiss and a Rule 56motion for summary judgment. As the Supreme Court has made clear fordecades, a summary judgment motion is the device for testing pretrialwhether the plaintiff has sufficient evidence to support its claims.(209) But if we graft an evidentiary requirement onto the pleadingsphase, a Rule 12(b)(6) motion would force a plaintiff, before anyopportunity for discovery, to present supporting evidence thatordinarily would not be needed until a summary judgment motion wasfiled. (210) Imposing on plaintiffs a Rule 56 burden to oppose a Rule12(b)(6) motion is textually problematic given the distinct roles thatthe Rules anticipate for these motions. (211)

Second, Rule 11 undermines the idea that a complaint must identifyevidentiary support for its allegations. Under Rule 11, the filer of anydocument certifies that, among other things, "the factualcontentions have evidentiary support or, if specifically so identified,will likely have evidentiary support after a reasonable opportunity forfurther investigation or discovery." (212) Arguably, requiringevidentiary support at the pleadings phase would contravene Rule 11 bymandating immediate dismissal of a complaint without the opportunityRule 11 envisions to use discovery to obtain the needed evidentiarysupport. (213) Rule 11 explicitly recognizes that a complaint maycontain factual allegations that presently lack evidentiary support but"will likely have evidentiary support after a reasonableopportunity for further investigation or discovery." (214)

One response to this critique could be that a stricter pleadingstandard would just require the complaint to confirm a sufficient"likel[ihood]" of obtaining evidentiary support in the future.(215) But this view is based on the mistaken premise that a Rule12(b)(6) motion to dismiss--which seeks to test merely whether thecomplaint provides the "short and plain statement of the claimshowing that the pleader is entitled to relief' required by Rule8--is the proper vehicle for testing Rule 11's requirement thatfactual allegations "will likely have evidentiary support after areasonable opportunity for further investigation or discovery."Rule 11 itself provides the procedural vehicles for challenging anattorney's failure to comply with Rule 11(b--either a motion forsanctions by another party, (216) or an order to show cause issued onthe court's own initiative. (217) A motion to dismiss a pleadingfor "failure to state a claim upon which relief can begranted" (218)

targets the "statement of the claim" (219) itself, notwhether the attorney has undertaken the required reasonable inquiry intothe likelihood of obtaining evidentiary support. Using Rule 11 as abasis for requiring supportive allegations at the pleadings phase would,therefore, conflate two separate procedural issues, contrary to the textand structure of the Federal Rules. (220)

Third, Form 11's model negligence complaint--which"suffice[s] under [the Federal Rules] and illustrate[s] thesimplicity and brevity that these rules contemplate" (221)--wouldseem to preclude any attempt to infer a requirement that the complaintcontain supporting evidence for its allegations. Form 11 alleges merely:"On <Date>, at <Place>, the defendant negligently drovea motor vehicle against the plaintiff." (222) It does not requireany level of evidentiary support suggesting that the defendant was, infact, driving negligently. (223) It requires nothing more than anallegation that the defendant was driving "negligently" whenhe struck the plaintiff. (224) Other forms also undermine theevidentiary approach. Form 18's complaint for patent infringement,using the example of electric motors, deems it sufficient to allege:"The defendant has infringed and is still infringing the LettersPatent by making, selling, and using electric motors that embody thepatented invention." (225) Form 18 does not require any level ofevidentiary support suggesting that the defendant's electricmotors, in fact, embody the plaintiff's invention. It requiresnothing more than an allegation that the defendant's motors embodythe patented invention.

Finally, an evidentiary theory cannot be reconciled with otherSupreme Court decisions that, as explained above, must be assumed toremain good law. (226) Swierkiewicz--the most recent example--squarelyconfronts and rejects such an evidentiary approach. Swierkiewicz hadalleged that he was fired based on his age and national origin, but thelower court dismissed the complaint for failing to "adequatelyallege[] circ*mstances that support an Inference ofdiscrimination." (227) The Supreme Court reversed the dismissal,instructing that federal courts "must accept as true all of thefactual allegations contained in the complaint"--including theallegation of discriminatory intent. (228) This obligation is"without regard to whether a claim will succeed on the merits.Indeed it may appear on the face of the pleadings that a recovery isvery remote and unlikely but that is not the test." (229)Consistent with this observation, the unanimous Court in Swierkiewiczrejected the idea that the complaint must indicate the availability ofsupporting evidence or facts suggesting that the allegations might beproven indirectly. The Court noted that the discovery process mightreveal evidence of discrimination that was not yet known. (230) Ittherefore found it "incongruous to require a plaintiff, in order tosurvive a motion to dismiss, to plead more facts than he may ultimatelyneed to prove to succeed on the merits if direct evidence ofdiscrimination is discovered" (231) even where the plaintiff is"without direct evidence of discrimination at the time of hiscomplaint." (232)

For all these reasons--conceptual, textual, and precedential--Iqbaland Twombly cannot be read to allow a court to disregard an allegationjust because its truth is not suggested by some other allegation. Suchan inquiry may be proper at step two of the Iqbal framework, but it isnot grounds for refusing to accept the truth of an allegation at Iqbalstep one. (233)

B. A Transactional Approach

One way to reconcile Twombly and Iqbal with authoritativepre-Twombly texts and precedents is to define "conclusory" intransactional terms. A plaintiff's complaint must provide anadequate transactional narrative, that is, an identification of thereal-world acts or events underlying the plaintiff's claim. When anallegation fails to concretely identify what is alleged to havehappened, that allegation is conclusory and need not be accepted as trueat the pleadings phase. (234) This approach is to be contrasted with theapproach considered in the previous Subpart, which would require thecomplaint to provide an evidentiary narrative, that is, informationsuggesting that the allegations will indeed be proven true (underwhatever probability threshold).

To illustrate the transactional approach, consider first somerather extreme examples that were alluded to earlier. Imagine acomplaint that alleges merely that "the defendant violated theplaintiff's legal rights in a way that entitles the plaintiff torelief." This allegation is conclusory in the transactional sensebecause it does not indicate what actually happened; it provides onlythe legal conclusion that the plaintiff's rights were violated. Thesame might be said of hypothetical complaints alleging merely that"the defendant violated the plaintiff's rights under Title VIIof the 1964 Civil Rights Act" or that "the defendant breacheda duty owed to the plaintiff under state law and this breach proximatelycaused damages to the plaintiff." These scenarios all state a claimfor relief, in the sense that the plaintiff would prevail if theseallegations were ultimately proven true. But they fail to provide anadequate transactional narrative, because they do not identify the actsor events underlying those allegations.

Another good illustration of a transactionally conclusory complaintis Dura Pharmaceuticals, Inc. v. Broudo, (235) a Supreme Court decisionissued during the five-year interval between Swierkiewicz and Twombly.The complaint in Dura alleged that because of the defendant'smisrepresentation, the plaintiffs "paid artificially inflatedprices for Dura['s] securities and suffered damages." (236)The Court refused to accept as true the allegation that the plaintiffshad "suffered damages." It noted that an"'artificially inflated purchase price' is not itself arelevant economic loss" and that the complaint had failed to allegethat the "share price fell significantly after the truth becameknown." (237) For the plaintiffs in a case like Dura to have"suffered damages," a distinct event must have occurred,namely, the movement of prices after the misrepresentation was revealed.But the Dura complaint did not identify that event in concrete terms.Thus the allegation that the plaintiffs had "suffered damages"was transactionally conclusory.

The reasoning of Twombly and Iqbal support this understanding ofwhat makes an allegation impermissibly conclusory. The Court stated inthose cases that "a formulaic recitation of the elements of a causeof action will not do" (238) and that Rule 8 "demands morethan an unadorned, the-defendant-unlawfully-harmed-me accusation."(239) What makes an allegation a mere "formulaic recitation of theelements," or "an unadorned,the-defendant-unlawfully-harmed-me accusation," is precisely thefact that it does not identify the underlying events that give rise toliability. By contrast, consider some of the pre-Twombly exemplars ofliberal pleading. As cursory as Form 11 is, it concretely identifies theliability-generating event: the defendant negligently driving his caragainst the plaintiff. (240) Form 18 does the same, identifying theplaintiff's receipt of a patent for electric motors and allegingthat the defendant is "making, selling, and using electric motorsthat embody the patented invention." (241) Swierkiewicz alsoprovides a straightforward transactional narrative: the plaintiff wasemployed by the defendant and he was fired because of his age(fifty-three) and national origin (Hungarian). (242)

As elaborated in greater detail below, there might not be a preciseformula for distinguishing between an adequate and an inadequateidentification of the underlying events. (243) It would have beenperfectly defensible if the Court had drawn that line differently thanit did in Twombly and Iqbal, and had instead deemed the allegations inthose cases nonconclusory and accepted their truth at the pleadingsphase. That said, the complaints in Twombly and Iqbal were--intransactional terms--qualitatively different from Form 11, Form 18, andSwierkiewicz. (244)

Take first the crucial paragraph in the Iqbal complaint. Paragraphninety-six alleged that Ashcroft, Muller, and nine other defendants"each knew of, condoned, and willfully and maliciously agreed tosubject Plaintiffs to [harsh] conditions of confinement as a matter ofpolicy, solely on account of their religion, race, and/or nationalorigin." (245) The problem is not the cursory allegation ofdiscriminatory animus. (246) The problem is the murkiness surroundingwhat Ashcroft and Mueller actually did vis-a-vis Iqbal. Given theCourt's understanding of what was required for Bivensliability--that "each Government-official defendant, through theofficial's own individual actions, has violated theConstitution" (247)--Ashcroft's and Mueller's individualconduct was crucial as a matter of substantive law. (248) Yet it isdifficult to square paragraph ninety-six's generic allegation withthe series of real-world events identified in the complaint. The"General Background" section of the complaint (249) identifieda number of high-level decisions and policies, including the policy of"holding post-September-11th detainees in highly restrictiveconditions of confinement until they were 'cleared' by theFBI" that was allegedly approved by Ashcroft and Mueller. (250) Thecomplaint did not allege that any of these policies were adopted orapproved for invidious reasons. (251) The next section of the complaintthen described Iqbal's confinement. (252) Up until this point inthe complaint, Ashcroft's and Mueller's role in Iqbal'sconfinement seemed to be their approval of the hold-until-clearedpolicy, which was never alleged to have been adopted for invidiousreasons. At paragraph ninety-six, however, the complaint alleged thatAshcroft, Muller, and others "each knew of, condoned, and willfullyand maliciously agreed to subject Plaintiffs to these conditions ofconfinement as a matter of policy, solely on account of their religion,race, and/or national origin." (253)

From a transactional narrative standpoint, the Iqbal complaintpotentially raises a red flag. The "agree[ment]" (254) inwhich Ashcroft and Mueller were allegedly involved was a distinct eventor transaction that, chronologically, preceded the conditions ofconfinement that were imposed on Iqbal as a result. Yet the allegationof this invidious agreement appears after the conditions of confinementare described, and in a completely different section from otherdecisions and policies that played a role in Iqbal's confinement.Is paragraph ninety-six meant to allege that Ashcroft and Mueller, withdiscriminatory intent, made a special agreement about Iqbal'sdetention distinct from the hold-until-cleared policy? Is it meant toallege that Ashcroft and Mueller, with discriminatory intent, adopted agenerally applicable policy that targeted individuals who sharedIqbal's religion, race, or national origin? Or is it meant toallege for the first time that the hold-until-cleared policy referred totwenty-seven paragraphs earlier was itself adopted for discriminatoryreasons? A judge might legitimately question whether paragraphninety-six is truly grounded in a real-world event or transaction, or israther "nothing more than a 'formulaic recitation of theelements' of a constitutional discrimination claim." (255)

The Twombly complaint has similar problems. It alleged severalexamples of "parallel conduct" by the defendants, includingthat they refrained from competing "head-to-head" in eachother's incumbent territories, (256) failed to providenon-Baby-Bell competitors the same quality of service and quality ofconnection to the network, (257) used billing methods that blocked thesecompetitors from auditing the bills they received from the defendants,(258) and negotiated agreements with these competitors on unfair terms.(259) The complaint then alleged in the crucial paragraph fifty-one:

 In the absence of any meaningful competition between the [defendants] in one another's markets, and in light of the parallel course of conduct that each engaged in to prevent competition from CLECs within their respective local telephone and/or high speed internet services markets and the other facts and market circ*mstances alleged above, Plaintiffs allege upon information and belief that Defendants have entered into a contract, combination or conspiracy to prevent competitive entry in their respective local telephone and/or high speed internet services markets and have agreed not to compete with one another and otherwise allocated customers and markets to one another. (260)

The phrasing and placement of paragraph fifty-one raise questionsabout whether the alleged "contract, combination orconspiracy" is grounded in any real-world acts or events. Bydefinition, the agreement to engage in parallel conduct must come beforethe parallel conduct itself. Yet the Twombly complaint places theconspiracy allegation after the parallel conduct allegations. And itphrases the allegation in a way that suggests that the conspiracyderives from the parallel conduct, rather than the other way around. TheTwombly majority emphasized this fact in concluding that while "afew stray statements [in the complaint] speak directly of agreement, onfair reading these are merely legal conclusions resting on the priorallegations." (261) Justice Souter wrote:

 [T]he complaint first takes account of the alleged "absence of any meaningful competition between [the ILECs] in one another's markets," "the parallel course of conduct that each [ILEC] engaged in to prevent competition from CLECs," "and the other facts and market circ*mstances alleged [earlier]"; "in light of" these, the complaint concludes "that [the ILECs] have entered into a contract, combination or conspiracy to prevent competitive entry into their ... markets and have agreed not to compete with one another." (262)

Read this way, the Twombly plaintiffs had merely "rest[ed]their [section] 1 claim on descriptions of parallel conduct and not onany independent allegation of actual agreement among the ILECs."(263) Accordingly, the majority concluded that the assertion of such anagreement in paragraph fifty-one was nothing more than "a formulaicrecitation of the elements of a cause of action." (264)

One can certainly dispute the Court's view that paragraphfifty-one was transactionally inadequate. The placement and phrasing ofparagraph fifty-one could be explained as an attempt by the plaintiff toindicate, consistent with Rule 11, that the conspiracy allegation wasone that did not currently have evidentiary support but "willlikely have evidentiary support after a reasonable opportunity forfurther investigation or discovery." (265) The Court's failureto consider this possibility is unfortunate, but that potential mistakeshould not obscure the fact that the Twombly majority's concernwith paragraph fifty-one was whether it constituted an "independentallegation of actual agreement" rather than a mere "legalconclusion[] resting on the prior allegations." (266) Had thecomplaint provided such an "independent allegation of actualagreement," it would have been accepted as true without regard toits "plausibility."

C. Rule 8 and the "Plain Statement" Requirement

This transactional understanding of what "conclusory"means can be situated in a new pleading paradigm: plain pleading. Thisapproach finds support in Rule 8's requirement that the complaintcontain a "short and plain statement of the claim showing that thepleader is entitled to relief." (267) One definition of the term"plain" is "free of impediments to view," (268) asin the phrases, "in plain sight" or "plain as day."The problem with the allegations that the Court disregarded as"conclusory" in Twombly and Iqbal is that a key act or eventunderlying the plaintiff's claim is obscured by the use of mereconclusory language; that conclusory language fails to identify whatreal world events are alleged to have occurred. (269)

More specifically, the plain-pleading paradigm breaks down Rule8(a)(2) as follows:

(1)A statement of the claim means an identification of the acts orevents that give rise to the plaintiff's claim. The statement doesnot need to provide any kind of evidentiary support. The statement doesnot need to justify why the plaintiff believes the events occurred ascharacterized in the complaint. It must merely provide an adequatetransactional narrative, that is, it must identify what acts or eventsare alleged to have occurred.

(2)This statement of the claim must be plain: that is, "freeof impediments to view." (270) This means that the operative actsor events must not be obscured by mere conclusory language. Thecomplaint's failure to provide evidentiary support for itsallegations does not make them conclusory. An allegation isimpermissibly conclusory when it is necessary to establish a viableclaim but fails to identify a tangible, real-world act or event.

(3)The statement of the claim must show that the pleader isentitled to relief, meaning that if the acts and events that are plainlyidentified occurred as characterized in the complaint, then theplaintiff would be legally entitled to the remedy requested. (271) Ifthe plainly identified acts and events are insufficient by themselves(perhaps because some conclusory allegations were disregarded for lackof plainness), then Rule 8 is satisfied only if the plainly identifiedacts and events plausibly suggest an entitlement to relief. As explainedabove, however, this plausibility inquiry makes the pleading standardmore lenient, not less; it allows a complaint to pass muster even ifcrucial elements of a claim for relief are couched in mere legalconclusions. (272) The plausibility inquiry cannot legitimately be readas allowing judges to reject allegations just because they perceive themto be implausible.

This understanding of Rule 8 captures the two-part pleadingframework the Court employed in Iqbal: first, identify allegations thatare conclusory and disregard them; second, determine whether theremaining allegations, accepted as true, plausibly suggest anentitlement to relief. (273) Conclusory allegations are not"plain" and, therefore, cannot count toward "showing thatthe pleader is entitled to relief." But all nonconclusoryallegations must be accepted as true. By defining conclusory intransactional terms, this taxonomy is able to reconcile the apparentconflict between Twombly and pre-Twombly authority on federal pleading.(274)

The plain-pleading approach might even be couched as an attempt tofurther refine what "notice" a defendant is entitled to at thepleadings phase. (275) As an organizing framework, however, it has anumber of advantages over the notice-pleading paradigm that prevailedduring the decades before Twombly. From a textual standpoint, noticepleading is an awkward fit with the text of the Federal Rules. While therequirement of "a short and plain statement of the claim showingthat the pleader is entitled to relief" (276) provides thedefendant some notice of the claim against it, Rule 8(a) does notsuggest that notice about any particular aspect of the claim isnecessary. (277) The plain-pleading paradigm, on the other hand, istextually grounded in Rule 8(a)(2)'s requirement that the statementof the claim be "short and plain." To be sure, the requirementthat the complaint identify the acts and events underlying theplaintiff's claim will perform a valuable notice-giving function.(278) But the plain-pleading paradigm is able to support that functionwithout the textual problems of one that is fixated on notice per se.

D. Some "Conclusory" Language Is Not Necessarily Fatal

A corollary to the transactional approach proposed here is that anallegation may contain some language that, in isolation, might becharacterized as conclusory without the allegation being deemed"conclusory" for purposes of Iqbal step one. One might say,for example, that Form 11's allegation that the defendant wasdriving negligently is a conclusory allegation. (279) Similar argumentscould be made about Form 18's allegation that the defendant'selectric motors embodied the patented invention, (280) or the allegationthat the defendant terminated Swierkiewicz because of his age andnational origin. (281)

These allegations are not transactionally conclusory, however,because they provide a basic identification of the liability-generatingevents or transactions. Form 11 states that the defendant drove his caragainst the plaintiff. Form 18 states that the defendant was making,selling, and using electric motors. The Swierkiewicz complaint statesthat the defendant terminated the plaintiff's employment. Once thattransactional core is adequately identified, certain qualities orcharacteristics of those events can permissibly be described with whatone might call conclusory language. Under a transactional approach, acomplaint need not further explain how or why an event is alleged tohave a particular quality or characteristic. (282) Form 11 does not needto explain how the defendant was driving negligently. (283) Form 18 doesnot need to explain how the defendant's motors embodied thepatented invention. Swierkiewicz did not need to explain why he believedthe defendant fired him for invidious reasons. (284) This distinction isthe key to explaining why the unanimous Court in Swierkiewicz socandidly acknowledged that its approach would "allow[] lawsuitsbased on conclusory allegations of discrimination to go forward."(285) It is permissible to allege a characteristic of a transaction inconclusory terms, as long as the complaint identifies the core contentof the transaction itself. (286) The complaint in Swierkiewicz provideda straightforward transactional narrative, even though the allegation ofdiscriminatory intent--viewed in isolation--could be labeled conclusory.(287)

E. A Complaint Need Not Provide Extensive Details About theUnderlying Events

Although the transactional approach proposed here would require thecomplaint to identify the real-world events that give rise to liability,it would be a mistake to construe this standard as requiting extensivedetails about the acts or events that are alleged to have occurred--forexample, exact dates, times, locations, or which particular employees orofficers of an institutional or corporate party were involved. Those whobelieve that a complaint must contain such details in order to passmuster might point to Form 11, which identifies the date and location ofthe accident, (288) or the complaint in Swierkiewicz, which identifiedthe dates on which particular events occurred and some of the corporateagents and officers involved. (289) But it should not be assumed thatsuch information is always necessary in order for an allegation to beaccepted as true at the pleadings phase. (290) Other form complaintsprovided in the Federal Rules confirm this. (291) As mentioned above,Form 18's complaint for patent infringement deems it sufficient toallege that "defendant has infringed and is still infringing theLetters Patent by making, selling, and using electric motors that embodythe patented invention." (292) No details are required aboutprecisely when or where the making, selling, and using occurred, orwhich of the defendant's officers or employees were involved. (293)In Form 17's complaint for breach of a contract to convey land, thebreach is adequately pleaded merely by alleging that "the plaintifftendered the purchase price and requested a conveyance of the land, butthe defendant refused to accept the money or make a conveyance."(294) No details are required about precisely when or how these eventstranspired.

There is another textual problem as well. If Rule 8 were construedto require additional details about events alleged in a complaint, thenwhat purpose would Rule 9(b) serve? Rule 9(b) requires, among otherthings, that fraud allegations must "state with particularity thecirc*mstances constituting fraud." (295) Thus, under Rule 9(b), acomplaint must allege "the date, time and place of the allegedfraud or otherwise inject precision or some measure of substantiationinto a fraud allegation," (296) such as by specifying eachstatement alleged to have been misleading, identifying the speaker, andexplaining the reason or reasons why the statement is misleading. (297)To read Iqbal and Twombly as rejecting allegations that lack additionaldetails would, essentially, import these same requirements into Rule 8.

F. The Line-Drawing Challenge

The line between allegations that do and do not adequately identifythe underlying acts or events may not always be clear. One couldreasonably disagree with the Court's holdings that the crucialallegations in Twombly and Iqbal were conclusory. (298) But uncertaintyabout how the federal pleading standard will apply to particularcomplaints is nothing new. Such uncertainty was also inherent inConley's fair-notice standard, insofar as the Supreme Court wasnever pushed to further define what "fair notice" meant. (299)Ultimately, the line-drawing challenge is unavoidable. As long as weagree that a complaint cannot just allege that "defendant violatedplaintiff's rights in a way that entitles plaintiff torelief," courts will need to police what is and is not an adequateidentification of the events underlying a plaintiff's claim.

There are, however, encouraging signs that some federal appellatecourts are approaching this issue along the lines that this Articlesuggests. One example is the recent decision in Fowler v. UPMCShadyside, (300) a disability discrimination case. The Third Circuitsquarely rejected the idea that a complaint must somehow suggest thetruth or provability of the allegations contained therein. As to theallegation that Fowler was disabled, the court wrote:

 At this stage of the litigation, the District Court should have focused on the appropriate threshold question--namely whether Fowler pleaded she is an individual with a disability. The District Court and UPMC instead focused on what Fowler can "prove," apparently maintaining that since she cannot prove she is disabled she cannot sustain a prima facie failure-to-transfer claim. A determination whether a prima facie case has been made, however, is an evidentiary inquiry--it defines the quantum of proof plaintiff must present to create a rebuttable presumption of discrimination. (301)

The Fowler court also accepted the plaintiff's allegationsthat "she was 'terminated because she was disabled' andthat UPMC discriminated against her by failing to 'transfer orotherwise obtain vacant and funded job positions' for her."(302) It held that these were "'more than labels andconclusions' or 'a formulaic recitation of the elements of acause of action'" (303) and concluded: "[w]e have notrouble finding that Fowler has adequately pleaded a claim for reliefunder the standards announced in Twombly and Iqbal." (304)

A transactional approach has also been employed in post-Iqbaldecisions where the court ultimately deemed an allegation to beconclusory. The Seventh Circuit's decision in Brooks v. Ross (305)involved the following allegation:

 Plaintiff is informed, believes and alleges that the Defendants while acting in concert with other State of Illinois officials and employees of the Attorney General's Office, Department of Corrections and Prisoner Review Board did knowingly, intentionally and maliciously prosecute Plaintiff and Ronald Matrisciano in retaliation for Plaintiff and the said Ronald Matrisciano exercising rights and privileges under the Constitutions and laws of the United States and State of Illinois. (306)

In refusing to accept this allegation as true, the court emphasizedthe complaint's failure to identify what happened, not its lack ofsupporting evidence and not its cursory allegation of retaliatorymotive. The court wrote: "[T]his paragraph fails under Iqbal,because it is merely a formulaic recitation of the cause of action andnothing more. It therefore does not put the defendants on notice of whatexactly they might have done to violate Brooks's rights under theConstitution, federal law, or state law." (307)

While reasonable judges may disagree over how to draw this line inparticular cases, (308) it is crucial that the inquiry focuses onwhether the complaint provides an adequate transactional narrative, notwhether it provides evidentiary support for its allegations. And courtsmust remain cognizant of their obligation to avoid conflicts with eitherbinding positive law (such as the Federal Rules and their Forms) orprecedent that has yet to be overruled (such as Swierkiewicz). (309)These basic principles, if faithfully observed, will provide asignificant check on the ability of courts to overassert their power todisregard allegations as failing to adequately identify the underlyingevents or transactions. Going forward, courts might promote greaterpredictability and certainty if, when they dismiss a complaint, theyspecify as precisely as possible what is missing from a complaint'sidentification of the underlying events. This practice would maketransparent a court's expectations in the case before it, so that aplaintiff may make an informed decision whether and how to amend thecomplaint. It would also provide better guidance for future courts andlitigants who might look to that dismissal as precedent.

V. SITUATING PLEADING STANDARDS IN THE POST-IQBAL ERA

This Part provides a deeper theory of the role pleadings ought toplay in civil adjudication, and explains how this Article'sapproach allows pleadings to continue to play their appropriate role inthe adjudicative process. It then confronts the relationship betweenpleading standards and discovery costs that drives so much of thecontemporary debate. It identifies some often-overlooked considerationsand suggests some alternative methods for managing discovery moreeffectively.

A. The Purpose of Pleadings

Scholars have broken down the purpose of pleadings in a number ofdifferent ways, but they might broadly be characterized as:notice-giving, process-facilitating, and merits-screening. (310) Noapproach to pleading will perform all of these functions perfectly; theyinvariably involve trade-offs with one another and with other systemicand societal values. (311) That said, this Article's proposal wouldadvance all three of these goals by requiring the complaint to plainlyidentify the acts or events that form the basis of the plaintiff'sclaim. Consider first the notice-giving purpose. The obligation toprovide a "statement of the claim" that is"plain"--i.e., not obscured by mere conclusory labels--has theeffect of informing defendants of the acts or events that are the basisof the claim against them. Although the notice a defendant must be givenat the pleadings phase was an uncertain issue before Twombly and remainsso today, (312) notice remains a valuable function of the pleadingsphase from a policy standpoint. The plain-pleading concept betterdefines what sort of notice is required--notice about the acts or eventsthat, according to the plaintiff, entitles him or her to relief from thedefendant. (313)

The plain-pleading approach also serves the process-facilitationfunction of pleadings. Under the Federal Rules of Civil Procedure, manyprocedural issues hinge on the "transaction or occurrence"that is the subject of the plaintiff's claim: whether multipleparties may be joined together in a single lawsuit, (314) whether adefendant's counterclaim is compulsory, (315) whether a crossclaimis permitted, (316) whether a third-party defendant may bring a claimagainst the plaintiff, (317) and whether a claim added by amendmentrelates back to the date of the original complaint. (318) Because theseexamples are all issues that must be addressed at the pleadings phase,it makes sense to require the complaint itself to identify the acts andevents--the "transactions or occurrences"--underlying theplaintiff's claim. The plain-pleading paradigm also enables thecomplaint to shed light on the preclusive effect of whatever judgment isultimately reached in the case. (319) Because res judicata typicallybars future lawsuits that are based on the same events or transactionsas an earlier one, (320) requiting the complaint to identify theunderlying events helps determine the scope of preclusion.

By contrast, consider what would happen if courts were forced toaccept allegations that were transactionally conclusory, in that theyfail even to identify the acts or events underlying the plaintiff'sclaim. Imagine a complaint that alleges merely that "the defendantviolated the plaintiffs' legal tights in a way that entitles theplaintiffs to relief." Or allegations that "the defendantviolated the plaintiffs' rights under Title VII of the 1964 CivilRights Act" or that "the defendant breached a duty owed to theplaintiffs under state law and this breach proximately caused damages tothe plaintiffs." How could a court or litigant assess (for example)whether joinder of parties is appropriate or whether a counterclaim iscompulsory, when the complaint fails to identify the acts or events uponwhich the plaintiffs' claims are based? The failure to plainlyidentify the underlying acts or events would also complicate theapplication of preclusion principles when a final judgment is reached.

Finally, the plain-pleading paradigm serves the purpose of enablingthe court to undertake preliminary merits-screening. If a court wereforced to accept as true even transactionally conclusoryallegations--for example, that "the defendant violated theplaintiffs' tights under Title VII of the 1964 Civil RightsAct"--it would be impossible to determine whether the acts orevents that the plaintiff hopes to prove would even establish a viableclaim. The plaintiff may believe, for example, that Title VII protectshim from being fired for wearing an obscenity-laden T-shirt to his jobas a Walmart checkout clerk. If forced to identify the real-world eventof his firing and the alleged reason for it, the court could easilydetermine that the complaint "fail[s] to state a claim upon whichrelief can be granted" (321)--Title VII, after all, would forbidthe firing only if it is "because of such individual's race,color, religion, sex, or national origin." (322) But if theallegation that the defendant violated his rights under Title VII mustbe accepted at the pleadings phase, that opportunity for preliminarymerits-screening is lost. (323)

One should ask, of course, whether these same three purposes mightalso be served by imposing a stricter pleading standard, such as onethat would require a complaint to contain evidentiary support for theallegations made therein. From a notice standpoint, one could argue thatsuch information would serve the purpose of notifying the defendant ofthe evidentiary basis for the lawsuit against it. (324) One could alsoargue that requiring the plaintiff to identify evidentiary support isvaluable for merits-screening purposes, because it could enable thecourt to inquire at the earliest possible stage whether the plaintiffhas sufficient evidence to prevail on the merits.

This enhanced notice and screening, however, would significantlyinterfere with the third function of pleadings--to facilitate theadjudicative process. There is perhaps no greater affront to theprocess-facilitation value than preventing meritorious claims from everseeing the light of day. (325) Yet for claims that depend on thediscovery process to obtain supporting evidence, a standard thatrequires such evidence at the pleadings phase would do precisely that.(326) Moreover, requiring evidentiary support at the pleadings phase isof little benefit given the post-pleading pretrial process that theRules set forth. Details about how a plaintiff plans to support itsallegations are the domain of pretrial orders, disclosure requirements,and the discovery process. (327) To impose a strict pleading standardthat prevents plaintiffs with potentially meritorious claims fromreaching that phase would undermine rather than facilitate theadjudicative process set forth in the Federal Rules.

More fundamentally from a process-facilitation standpoint, torequire the complaint to contain evidentiary support for its allegationsmay be conceptually unworkable. As described earlier, a complaint cannever truly provide evidentiary support for the allegations containedtherein, because even the most detailed, particularized allegations arethemselves just allegations. (328) If courts take seriously the ideathat all allegations are conclusory when they are not bolstered byevidentiary support, then every allegation will be deemed conclusory,because any allegation offered to add additional support is merelyanother allegation.

B. Pleading Standards and Discovery Costs

The previous Subpart does not discuss the reduction of discoverycosts as a potential purpose of pleading standards. It is a hotlycontested issue whether pleading standards should be tasked withperforming that function. Discovery costs are, however, a crucial partof the debate over how strict or lenient federal pleading standardsought to be. (329) From the litigants' standpoint, access todiscovery may present a zero-sum game. Stricter pleading standards helpdefendants at the expense of plaintiffs, and more lenient pleadingstandards help plaintiffs at the expense of defendants. (330) In thissense, the plain-pleading paradigm proposed in this Article is unlikelyto please those who saw Twombly and Iqbal as an opportunity to tightenpleading standards significantly, which would facilitate the earlydismissal of lawsuits and avoid the discovery burdens those lawsuitsentail. (331)

Discovery costs are a serious and legitimate concern, however. ThisSubpart offers a few observations on the relationship between pleadingstandards and discovery costs. Any attempt to justify stricter pleadingstandards on the basis that they avoid discovery costs will befundamentally incomplete unless it considers (1) the benefits ofdiscovery (and hence the costs of dismissing cases before discovery);(2) alternative measures--other than pleading standards--for mitigatingdiscovery costs; and (3) the added costs that stricter pleadingstandards might impose on the pleadings phase.

As to the first point, access to the discovery process can allow aplaintiff to uncover evidence confirming that a case is, in fact,meritorious. For many kinds of claims, the information a plaintiff wouldneed to satisfy a stricter pleading standard is in the hands or mind ofthe defendant and, therefore, can be meaningfully gathered only throughthe pretrial discovery process. (332) As discussed earlier, heightenedpleading standards place such plaintiffs in the Catch-22 of needingcourt-supervised discovery to uncover the factual and evidentiarydetails that would be required to get past the pleadings phase todiscovery. (333) The end result would be the dismissal of such claimsbefore there has been any opportunity to confirm their merit. (334) Tomeasure accurately the costs and benefits of stricter pleadingstandards, one must include the costs of thwarting such meritoriousclaims--costs that are suffered not only by the unsuccessful plaintiffbut also by society at large, given that civil judgments promotedeterrence more broadly.

The danger that stricter pleading standards will preventmeritorious claims from seeing the light of day makes it crucial toconsider alternative ways to balance the costs and benefits of access todiscovery. (335) One such alternative is for judges to take advantage ofthe tools that the Federal Rules already give them for managing thediscovery process. (336) Such tools allow judges to restrict discoverywhere its costs are likely to exceed its benefits. (337) This morenuanced approach avoids the sledgehammer of dismissal at the pleadingsphase, which denies all access to discovery, in favor of allowing courtsto mitigate discovery's costs while preserving its potentialbenefits.

Those who favor stricter pleading standards respond that, inpractice, courts are unwilling to adequately manage the discoveryprocess. (338) Thus the dangers of abusive discovery remain. Defendantswho cannot get a case dismissed on the pleadings have no choice but toendure costly discovery, and plaintiffs may opportunistically filemeritless claims in the hopes of a nuisance settlement. The difficultyin obtaining appellate review of district-court discovery ordersexacerbates this problem by allowing judges to evade correction whenthey fail to manage discovery adequately. (339)

This argument deserves careful consideration, but it has its shareof problems. If a federal judge is willing to dismiss suspicious casesoutright under a heightened pleading standard, he or she should bewilling to take the more moderate step of imposing limits--perhaps evenvery strict limits--on discovery as the Rules explicitly allow. (340)Conversely, it is hard to imagine that a judge who would refuse toconsider limitations on discovery despite a defendant's concernsabout undue costs would vigorously dismiss claims under a strictpleading standard like the one many attribute to Twombly and Iqbal. Andsuch a judge could just as easily evade higher-court scrutiny; thedecision to deny a defendant's motion to dismiss a complaint is aninterlocutory order that typically may not be appealed (if at all) untilafter a final judgment is reached. (341) Thus, the argument that strictpleading standards are needed because judges are failing to use theFederal Rules' discovery-management tools proves too much. For anylegal standard to be effective, judges must faithfully apply it.Pleading and discovery-management principles are no different in thisregard. (342)

In any event, it is worth considering whether alternativeprocedural devices might encourage courts to take a more active role inmanaging discovery. One potential problem with the usual process bywhich parties seek, and courts consider, ex ante limitations ondiscovery is that it can operate too much in the abstract. (343) Rightlyor wrongly, judges figure that they can always deal with objections toparticular discovery requests on a case-by-case basis. But that attitudecan lead discovery costs to spiral out of control. Unrestrained partieshave an incentive to serve the broadest, most burdensome discoveryrequests they can, knowing that the initial formulation is just the"opening bid." The ultimate scope of discovery will befinalized through either negotiation with opposing counsel (in whichcase making broad initial requests gives the party more room to makeconcessions) or the intervention of a district or magistrate judge (whomay "split the difference" and, in doing so, implicitly rewardparties who make broad initial requests). The time and expense oflitigating these discovery disputes only add to the costs.

A better process might be one that enables defendants to targetparticular issues in a complaint and have the court confront as athreshold matter the appropriate quantum of discovery to allow on eachissue. One way to accomplish this under the current rules would be viaRule 12(d), which empowers defendants to present "matters outsidethe pleadings" when seeking to dismiss a complaint. (344) Adefendant in a case like Swierkiewicz, for example, could presentaffidavits showing that the true motive for firing the plaintiff waslegitimate and non-discriminatory. Rule 12(d) would then require thecourt to treat the defendant's motion as one for summary judgmentunder Rule 56 and to give all parties "a reasonable opportunity topresent all the material that is pertinent to the motion." (345)Rule 12(d), therefore, spurs the court to consider how much discovery asto this particular issue is appropriate before allowing discovery toproceed more generally. If the evidence the plaintiff obtains duringthat first phase is insufficient, then that motion should begranted--all before an answer has been filed, but after a limitedopportunity for the plaintiff to seek discovery on that particularissue. (346)

Finally, the argument that a stricter pleading standard is neededto control discovery costs overlooks the costs that heightened pleadingstandards can add to the pleadings phase itself. First, a stricterpleading standard can encourage costly, time-consuming litigation overpleading sufficiency. The perception that Twombly and Iqbal raised thebar for federal pleading standards seems to have had precisely thiseffect. (347) Twombly has been cited nearly 24,000 times in less thanthree years on the books, and Iqbal is being cited at a remarkable clipas well. (348) This result should come as no surprise. Because acomplaint by definition contains only "allegations"--notevidentiary support for those allegations--it is hard to imagine a casewhere a defendant could not colorably argue that additional"enhancement" or "heft" is required. (349) There isvery little downside for a defendant who files such a Rule 12(b)(6)motion, and the potential upside--immediate dismissal of thecomplaint--is huge.

This dynamic leads to a second problem. If required to bolster acomplaint's allegations with evidentiary support, plaintiffs willbe encouraged to pack the complaint full of "factualenhancement" in the hopes of satisfying that uncertain (andarguably unworkable) requirement. Federal courts have already expressedfrustration with excessively lengthy complaints, (350) but one canhardly fault plaintiffs who are up against Twombly and Iqbal as they areconventionally understood. Yet the costs of requiring such informationin the complaint are likely to far outweigh the benefits. (351) Althoughthere may be some value in revealing the kind of evidence that theplaintiff might use to prove its case, the disclosure/discovery processalready obligates plaintiffs to disclose the evidence they intend to useto support their claims. (352) Forcing the plaintiff to cram suchinformation into the complaint, therefore, seems unnecessary. It canalso impose added costs on defendants. Assuming a complaint containsenough "enhancement" to survive a stricter pleading standard,each of those peripheral allegations must then be admitted or denied bythe defendant in its answer. (353)

For these reasons, concern about the high costs of the federaldiscovery process is not by itself sufficient to justify stricterpleading standards as a policy matter. To be sure, discovery expense isone area that pleading standards can impact. But the countervailingconsiderations detailed here confirm that one should proceed withcaution before letting the specter of discovery burdens and nuisancesettlements wipe out more than a half-century of liberal pleadingstandards in federal court. (354)

CONCLUSION

The Supreme Court's recent decisions in Twombly and Iqbal havegenerated fundamental questions about federal pleading requirements.Because these decisions have emboldened defendants to seek dismissal ofclaims at the pleadings phase even more aggressively than before,finding adequate answers to these questions is crucial. ThisArticle's solution reconciles prior authority, fits with the textof the Federal Rules, and accomplishes the purposes that pleadings oughtto serve in the broader context of civil adjudication.

APPENDIX

The following chart lists the one hundred most-frequently citedSupreme Court decisions of all time, in terms of citations by federalcourts and tribunals, according to the Shepard's citation service(as of March 17, 2010). (355)

The following chart ranks Supreme Court decisions in terms of theirrate of new citing decisions by federal courts and tribunals. Itmeasures the period from June 30, 2009, through March 17, 2010. (355)

(1.) FED. R. CIV. P. 8(a)(2) (requiring the complaint to contain"a short and plain statement of the claim showing that the pleaderis entitled to relief').

(2.) See FED. R. CIV. P. 12(b)(6) (authorizing a pre-answer motionto dismiss a claim for "failure to state a claim upon which reliefcan be granted").

(3.) 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERALPRACTICE AND PROCEDURE [section] 1357 (3d ed. 2009) ("The basicprinciples underlying practice on a Rule 12(b)(6) motion are relativelystraightforward and have been well established over the years by thecase law.").

(4.) 550 U.S. 544 (2007).

(5.) 129 S. Ct. 1937 (2009).

(6.) Conley v. Gibson, 355 U.S. 41, 47 (1957). Toward the close ofthe twentieth century, judges in the lower federal courts wouldoccasionally attempt to impose stricter pleading standards. See, e.g.,Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV.987, 988 (2003) (noting the tendency of some lower federal courts to"impose non-Rule-based heightened pleading in direct contraventionof notice pleading doctrine"); Richard L. Marcus, The Revival ofFact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L.REV. 433, 435 (1986) (noting that "fact pleading ... seems to beenjoying a revival in a number of areas in which courts refuse to accept'conclusory' allegations as sufficient under the FederalRules"). But such efforts by lower courts were consistentlyrebuffed by the Supreme Court in unequivocal terms. See infra note 37and accompanying text.

(7.) See, e.g., Robert L. Carter, Civil Procedure as a Vindicatorof Civil Rights: The Relevance of Conley v. Gibson in the Era of"Plausibility Pleading," 52 HOW. L.J. 17 (2008); A. BenjaminSpencer, Plausibility Pleading, 49 B.C.L. REV. 431 (2008).

(8.) Twombly, 550 U.S. at 556-57.

(9.) As of March 2010, Twombly had been cited in nearly 24,000federal decisions--already number seven of all time. See infra app.tbl.1 (ranking the one hundred most-frequently-cited Supreme Court casesin terms of citations by federal courts and tribunals). And that figureis increasing at a remarkable rate of nearly 800 new federal citingdecisions each month. See id. tbl.2, Iqbal is not far behind, havingcracked the top one hundred most-cited Supreme Court decisions in lessthan ten months on the books (number seventy-six as of March 2010). Id.tbl.1, Iqbal is averaging over 500 new federal citing decisions eachmonth, id. tbl.2, and has been described as "the most significantSupreme Court decision in a decade for day-to-day litigation in thefederal courts." Adam Liptak, Case About 9/11 Could Lead to a BroadShift on Civil Lawsuits, N.Y. TIMES, July 21, 2009, at A 10 (quotingattorney Thomas Goldstein).

(10.) See, e.g., Robert G. Bone, Twombly, Pleading Rules, and theRegulation of Court Access, 94 IOWA L. REV. 873 (2009); Stephen B.Burbank, Pleading and the Dilemmas of "General Rules," 2009WIS. L. REV. 535; Kevin M. Clermont & Stephen C. Yeazell, InventingTests, Destabilizing Systems, 95 IOWA L. REV. 821 (2010); Scott Dodson,Comparative Convergences in Pleading Standards, 158 U. PA. L. REV. 441(2010); Richard A. Epstein, Bell Atlantic v. Twombly: How Motions toDismiss Become (Disguised) Summary Judgments, 25 WASH. U. J.L. &POL'Y 61 (2007); Lonny S. Hoffman, Burn Up the Chaff withUnquenchable Fire: What Two Doctrinal Intersections Can Teach Us AboutJudicial Power over Pleadings, 88 B.U.L. REV. 1217 (2008); Allan Ides,Bell Atlantic and the Principle of Substantive Sufficiency Under FederalRule of Civil Procedure 8(a)(2): Toward a Structured Approach to FederalPleading Practice, 243 FED. RULES DECISIONS 604 (2006); Joseph A.Seiner, The Trouble with Twombly: A Proposed Pleading Standard forEmployment Discrimination Cases, 2009 U. ILL. L. REV. 1011; Spencer,supra note 7; A. Benjamin Spencer, Understanding Pleading Doctrine, 108MICH. L. REV. 1 (2009); Paul Stancil, Balancing the Pleading Equation,61 BAYLOR L. REV. 90 (2009); Suja A. Thomas, Why the Motion to DismissIs Now Unconstitutional, 92 MINN. L. REV. 1851 (2008); see also ScottDodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 VA.L. REV. IN BRIEF 135 (2007); Z.W. Julius Chen, Note, Following theLeader: Twombly, Pleading Standards, and Procedural Uniformity, 108COLUM. L. REV. 1431 (2008); Kendall W. Harmon, Note, Much Ado AboutTwombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on12(b)(6) Motions, 83 NOTRE DAME L. REV. 1811 (2008).

(11.) Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950, 1952 (2009).

(12.) For recent critiques of Iqbal, see, for example, Robert G.Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroftv. Iqbal, 85 NOTRE DAME L. REV. 849 (2010); Clermont & Yeazell,supra note 10; Suzette M. Malveaux, Front Loading and Heavy Lifting: HowPre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal onCivil Rights Cases, 14 LEWIS & CLARK L. REV. 65 (2010); Elizabeth M.Schneider, The Changing Shape of Federal Civil Pretrial Practice: TheDisparate Impact on Civil Rights and Employment Discrimination Cases,158 U. PA. L. REV. 517 (2010); A. Benjamin Spencer, Iqbal and the SlideToward Restrictive Procedure, 14 LEWIS & CLARK L. REV. 185 (2010);Suja A. Thomas, The New Summary Judgment Motion: The Motion to DismissUnder Iqbal and Twombly, 14 LEWIS & CLARK L. REV. 15 (2010); HowardM. Wasserman, Iqbal, Procedural Mismatches, and Civil Rights Litigation,14 LEWIS & CLARK L. REV. 157 (2010); Rakesh Kilaru, Comment, The NewRule 12(b)(6): Twombly, Iqbal, and the Paradox of Pleading, 62 STAN. L.REV. 905 (2010); Gregory P. Joseph, Supreme Court on Federal Practice2009, 77 U.S.L. Wk. 2787 (2009); Liptak, supra note 9 (quoting JusticeGinsburg's comment that Iqbal was dangerous and had "messed upthe federal rules" and Professor Stephen Burbank's commentthat it "obviously licenses highly subjective judgments" and"is a blank check for federal judges to get rid of cases theydisfavor"); Tony Mauro, Ashcroft Ruling Adds Hurdle for Plaintiffs:U.S. Supreme Court Decision in Iqbal Could Make It Easier for DefendantsTo Dismiss Civil Complaints, NAT'L L.J., May 25, 2009 (quotingProfessor Alan Morrison's comment that Iqbal is "verytroubling" and attorney Michael Winger's comment that "Ifear [Iqbal] will keep many victims of governmental discrimination andabuse from ever getting their day in court"); Michael C. Doff, TheSupreme Court Dismisses a 9/11 Detainee's Civil Lawsuit, FINDLAWWRIT, May 20, 2009, http://writ.news.findlaw.com/dorf/20090520.html;Mark Herrmann, James M. Beck & Stephen B. Burbank, Debate, PlausibleDenial: Should Congress Overrule Twombly and Iqbal?, 158 U. PA. L. REV.PENNUMBRA 141 (2009), http://www.pennumbra.com/debates/pdfs/PlausibleDenial.pdf (Rebuttal and Closing Statement of ProfessorBurbank); Elizabeth Thornburg, Law, Facts and Power, 114 PENN STATIM 1(2010), available athttp://www.pennstatelawreview.org/114/114%20Penn%20Statim%201.pdf; seealso Posting of Scott Dodson to Civil Procedure and Federal Courts Blog,Beyond Twombly, http://lawprofessors.typepad.com/civpro/2009/05/beyond-twombly-by-prof-scott-dodson.html (May 18, 2009); Posting ofAlexandra D. Lahav to Mass Tort Litigation Blog, The Plausible PleadingStandard, http://lawprofessors.typepad.com/mass_tort_litigation/2009/05/the-plausible-pleading-standard.html (May 20, 2009); Posting of HowardWasserman to PrawfsBlawg, Iqbal and the Death of Notice Pleading: PartI, http://prawfsblawg.blogs.com/prawfsblawg/2009/05/iqbal-and-the-death-of-notice-pleading-part-i.html (May 18, 2009).

(13.) See, e.g., Liptak, supra note 9 (stating attorney MarkHerrmann's comment that Iqbal will allow for the dismissal of casesthat otherwise would have subjected defendants to millions of dollars indiscovery costs); Lynn C. Tyler, Recent Supreme Court Decision HeightensPleading Standards, Holds Out Hope for Reducing Discovery Costs, 77U.S.L.W. 2755 (2009); Herrmann, Beck & Burbank, supra note 12(Opening Statement and Closing Statement of Herrmann and Beck); Postingof Ashby Jones to Wall Street Journal Law Blog, Why Defense Lawyers AreLovin' the Iqbal Decision, http://blogs.wsj.com/law/2009/05/19/why-defense-lawyers-are-lovin-the-iqbal-decision/tab/article/(May 19, 2009 13:07 EST); see also Posting of Jim Beck & MarkHerrmann to Drug and Device Law Blog, In Praise of "Short &Plain" Pleadings After Twombly and Iqbal (May 28, 2009),http://druganddevicelaw.blogspot.com/2009/05/in-praise-of-short-and-plain-pleadings.html.

(14.) For two thoughtful attempts to reconcile the post-Twombly andpre-Twombly approaches to pleading, see Bone, supra note 10, at 883("Despite these seemingly contradictory signals, evaluatingTwombly's impact on notice pleading is not as difficult as somecritics believe. The Court's signals appear conflicting only if oneassumes that Twombly substantially tightens pleading requirements. Butthis assumption is incorrect."); Edward A. Hartnett, TamingTwombly, Even After Iqbal, 158 U. PA. L. REV. 473, 474 (2010)("Rather than decrying Twombly as a radical departure and seekingto overturn it, this Article instead emphasizes Twombly'sconnection to prior law and suggests ways in which it can betamed."). But cf. Bone, supra note 12, at 851 (arguing that"Iqbal's version of plausibility is significantly stricterthan Twombly's" because "Iqbal applies a thick screeningmodel that aims to screen weak as well as meritless suits, whereasTwombly applies a thin screening model that aims to screen only trulymeritless suits").

(15.) See infra notes 156-60 and accompanying text (discussingTwombly's treatment of the statement in Conley v. Gibson, 355 U.S.41, 45-46 (1957), that "a complaint should not be dismissed forfailure to state a claim unless it appears beyond doubt that theplaintiff can prove no set of facts in support of his claim which wouldentitle him to relief').

(16.) In Iqbal, for example, plausibility became relevant onlybecause the allegation at paragraph ninety-six of the complaint--thatAshcroft and Mueller "each knew of, condoned, and willfully andmaliciously agreed to subject Plaintiffs to [harsh] conditions ofconfinement as a matter of policy, solely on account of their religion,race, and/or national origin"--was disregarded as conclusory. Seeinfra notes 126-32 and accompanying text. The Court therefore treatedthe complaint as making no allegation of discriminatory motive, andproceeded to inquire whether the remaining allegations--standingalone--plausibly suggested discriminatory intent. But if paragraphninety-six had not been disregarded as conclusory, it would have beenaccepted as true, without any inquiry into plausibility. See infra notes138-42 and accompanying text.

(17.) Two such examples are the employment-discrimination complaintin Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), and the negligencecomplaint in Form 11 of the Federal Rules. As explained infra notes238-42 & 279-86 and accompanying text, these complaints pass musterbecause they identify the underlying acts or events (theplaintiff's firing in Swierkiewicz, the plaintiff being struck by acar in Form 11), even though other characteristics of those events (theemployer's discriminatory intent in Swierkiewicz, thedefendant's negligence in Form 11) are alleged in conclusoryfashion.

(18.) See infra notes 245-66 and accompanying text.

(19.) See infra Part III.D.

(20.) FED. R. CIV. P. 8(a)(2).

(21.) 355 U.S. 41 (1957).

(22.) Id. at 47.

(23.) Id.

(24.) 507 U.S. 163 (1993) (Rehnquist, C.J., writing for a unanimousCourt).

(25.) Id. at 168 (citation omitted). In Leatherman, the plaintiffshad claimed that a municipality was liable under [section] 1983 for theunconstitutional execution of a search warrant, alleging that themunicipality had failed to adequately train the officers involved. Id.at 165. The defendants argued that the complaint was insufficientbecause the failure-to-train allegation had not been bolstered byadditional facts. Id. at 167. The unanimous Court rejected this attemptto impose greater burdens on plaintiffs at the pleadings phase, citingConley's mandate that "the Federal Rules of Civil Procedure donot require a claimant to set out in detail the facts upon which hebases his claim." Id. at 168 (quoting Conley, 355 U.S. at 47).

(26.) FED R. CIV. P. 84. Indeed, the chief drafter of the originalFederal Rules of Civil Procedure--Judge Charles Clark--believed that thesample complaints provided in these forms were "the most importantpart of the rules" when it comes to illustrating what Rule 8requires. Charles E. Clark, Pleading Under the Federal Rules, 12 WYO.L.J. 177, 181 (1958) ("What we require [in Rule 8] is a generalstatement of the case.... We do not require detail. We require a generalstatement. How much? Well, the answer is made in what I think isprobably the most important part of the rules so far as this particulartopic is concerned, namely, the Forms.").

(27.) FED. R. CIV. P. Form 11 ("Complaint forNegligence"), [paragraph] 2. Before the 2007 restyling of theFederal Rules of Civil Procedure, this form appeared as Form 9 and wasdrafted slightly differently. See Bell Atl. Corp. v. Twombly, 550 U.S.544, 575-76 (2007) (Stevens, J., dissenting) (quoting what was then Form9: "On June 1, 1936, in a public highway called Boylston Street inBoston, Massachusetts, defendant negligently drove a motor vehicleagainst plaintiff who was then crossing said highway.");Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 n.4 (2002) (same).

(28.) 534 U.S. 506.

(29.) Amended Complaint at [paragraph] 37, Swierkiewicz v. SoremaN. A., No. 99 Civ. 12272 (S.D.N.Y. Apr. 19, 2000) [hereinafterSwierkiewicz Amended Complaint]; see also Swierkiewicz, 534 U.S. at 514("Petitioner alleged that he had been terminated on account of hisnational origin in violation of Title VII and on account of his age inviolation of the ADEA.").

(30.) See Swierkiewicz, 534 U.S. at 515 ("[The federal]pleading standard [is] without regard to whether a claim will succeed onthe merits."); accord Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)("When a federal court reviews the sufficiency of a complaint,before the reception of any evidence either by affidavit or admissions,its task is necessarily a limited one. The issue is not whether aplaintiff will ultimately prevail but whether the claimant is entitledto offer evidence to support the claims.").

(31.) See Swierkiewicz, 534 U.S. at 511-12 (rejecting as"incongruous" with notice pleading a requirement to allegefacts raising an inference of discrimination, because "directevidence of discrimination" might be unearthed during discoveryeven though the plaintiff was concededly "without direct evidenceof discrimination at the time of his complaint").

(32.) See infra notes 228-32 and accompanying text.

(33.) Swierkiewicz, 534 U.S. at 514-15 (recognizing that thisapproach to pleading would "allow[] lawsuits based on conclusoryallegations of discrimination to go forward" but concluding that"[w]hatever the practical merits of this argument, the FederalRules do not contain a heightened pleading standard for employmentdiscrimination suits").

(34.) Swierkiewicz, 534 U.S. at 515 (quoting Leatherman v. TarrantCounty, 507 U.S. 163, 168 (1993)).

(35.) See, e.g., FED. R. CIV. P. 9(b) (requiring that a complaintalleging fraud or mistake "state with particularity thecirc*mstances constituting fraud or mistake"); Tellabs, Inc. v.Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) (applying thePrivate Securities Litigation Reform Act's special pleadingstandards for certain securities law claims (codified at 15 U.S.C.[section] 78u-4(b)(2)), which require the complaint to "state withparticularity facts giving rise to a strong inference that the defendantacted with the required state of mind").

(36.) See supra note 6.

(37.) See, e.g., Swierkiewicz, 534 U.S. at 510-15 (2002) (rejectinglower court's imposition of heightened pleading standard foremployment discrimination claims); Leatherman, 507 U.S. at 167-68(rejecting lower court's imposition of heightened pleading standardfor civil rights claims against government officials).

(38.) Bell Atl. Corp. v. Twombly, 550 U.S. 544, 549 (2007). ILECstands for "Incumbent Local Exchange Carrier." Id.

(39.) CLEC stands for "competitive local exchangecarder." Id.

(40.) See id. at 550-51.

(41.) Id. at 559.

(42.) Id. at 548 ("Liability under [section] 1 of the ShermanAct requires a 'contract, combination, or conspiracy, in restraintof trade or commerce.'" (citation and ellipses omitted)).

(43.) Id. at 551 (quoting [paragraph] 51 of the plaintiffs'complaint).

(44.) See Twombly v. Bell Atl. Corp., 313 F. Supp. 2d 174, 176, 178(S.D.N.Y. 2003).

(45.) Id. at 189.

(46.) Twombly v. Bell Atl. Corp., 425 F.3d 99, 119 (2d Cir. 2005).

(47.) See Twombly, 550 U.S. 544, 570 (2007).

(48.) Id. at 551.

(49.) Id. at 564; see also id. ("[T]he complaint leaves nodoubt that plaintiffs rest their [section] 1 claim on descriptions ofparallel conduct and not on any independent allegation of actualagreement among the ILECs.").

(50.) Id. at 557.

(51.) Id. at 556.

(52.) Id. at 555.

(53.) Id. at 551 (quoting plaintiffs' complaint).

(54.) Id. at 550-51 (internal quotation marks omitted).

(55.) Id. at 553 (quoting Theatre Enter., Inc. v. Paramount FilmDistrib. Corp., 346 U.S. 537, 540 (1954)); see also id. at 553-54("Even conscious parallelism, a common reaction of firms in aconcentrated market that recognize their shared economic interests andtheir interdependence with respect to price and output decisions is notin itself unlawful." (quoting Brooke Group Ltd. v. Brown &Williamson Tobacco Corp., 509 U.S. 209, 227 (1993) (internal quotationmarks omitted))).

(56.) Id. at 553-54 (emphasis added) (internal citations andquotation marks omitted).

(57.) Id. at 558 (noting that "proceeding to antitrustdiscovery can be expensive").

(58.) Id. at 559.

(59.) Id. (internal quotation marks omitted).

(60.) Id. at 563.

(61.) 355 U.S. 41, 45-46 (1957).

(62.) Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007).

(63.) Id. at 561 (internal quotation marks omitted).

(64.) Id. at 556.

(65.) Id. at 557 (internal quotation marks omitted).

(66.) Id. at 570.

(67.) See, e.g., Hoffman, supra note 10, at 1224 ("[F]ollowingTwombly's thundering arrival in 2007, academic interest in thesubject [of pleading standards] has been rekindled."); Spencer,supra note 7, at 431 (describing Twombly as "a startling move bythe U.S. Supreme Court").

(68.) See, e.g., Gregory P. Joseph, Federal Litigation--Where DidIt Go Off Track?, LITIG., Summer 2008, at 5, 62 ("The Supreme Courtalso rewrote federal pleading requirements in 2007, without evenamending the pleading rules, by issuing its decision in Bell AtlanticCorp. v. Twombly....").

(69.) See, e.g., Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007)(noting that "[c]onsiderable uncertainty concerning the standardfor assessing the adequacy of pleadings has recently been created by theSupreme Court's decision in Bell Atlantic Corp. v. Twombly"and that "[s]ome of [Twombly's] signals point toward a new andheightened pleading standard"), rev'd sub nom. Ashcroft v.Iqbal, 129 S. Ct. 1937 (2009).

(70.) See, e.g., Kersenbrock v. Stoneman Cattle Co., No.07-1044-MLB, 2007 WL 2219288, at *2 n.2 (D. Kan. July 30, 2007)("[Twombly] deals only with pleading requirements in the highlycomplex context of an antitrust conspiracy case. It does not announce ageneral retreat from the notice pleading requirement of FED. R. CIV. P.8(a).").

(71.) See Ides, supra note 10, at 631-32 ("[T]he problemconfronting the [Twombly] plaintiffs was a self-inflicted wound. Inessence, they pied themselves out of court by filing a complaint thatalleged a claim unrecognized by the Sherman Act, namely, a claim ofanticompetitive parallel conduct.").

(72.) 551 U.S. 89 (2007) (per curiam).

(73.) Erickson emphasized that "when ruling on adefendant's motion to dismiss, a judge must accept as true all ofthe factual allegations contained in the complaint" and that"[s]pecific facts are not necessary." Id. at 93-94.

(74.) Ides, supra note 10, at 638-39 ("[F]rom the availablerecords, it appears that Erickson was 'held' pending thedecision in Bell Atlantic. One gets the sense, given Erickson'srelative lack of 'certworthiness,' that the rapidly preparedand issued Erickson opinion was written as a reassurance that the BellAtlantic decision had not altered Rule 8(a)(2) pleadingprinciples.").

(75.) As a per curiam decision issued without oral argument ormerits briefing, it is not clear how strong Erickson's precedentialeffect would be in any event. See EUGENE GRESSMAN, KENNETH S. GELLER,STEPHEN M. SHAPIRO, TIMOTHY S. BISHOP & EDWARD A. HARTNETT, SUPREMECOURT PRACTICE 305 & n.94 (9th ed. 2007) (noting that"decisions explained in a written opinion but rendered without fullbriefing and argument" are "entitled to some weight, but toless than fully articulated decisions" and that "[t]his maymean ... no more than that the Justices will follow such holdings whenthey agree with them, but not otherwise"); see also id. at 349("The most controversial form of summary disposition is a percuriam opinion that simultaneously grants certiorari and disposes of themerits at some length.... The parties are given no opportunity to filebriefs on the merits or to argue orally before the Court.").

(76.) 129 S. Ct. 1937 (2009).

(77.) Id. at 1942.

(78.) Id. at 1943.

(79.) Id. at 1942.

(80.) Id. Iqbal's other claims against Ashcroft andMueller--including claims for violation of procedural due process--weredismissed on qualified immunity grounds by the lower courts. See Iqbalv. Hasty, 490 F.3d 143, 167-68 (2d Cir. 2007) (directing dismissal ofprocedural due process claims).

(81.) Iqbal, 129 S. Ct. at 1943 ("We hold respondent'spleadings are insufficient.").

(82.) Id. at 1948 (citations omitted).

(83.) Id.

(84.) Id. (quoting Pers. Adm'r v. Feeney, 442 U.S. 256, 279(1979)).

(85.) Id. (alteration in original) (internal quotation marksomitted) (quoting Feeney, 442 U.S. at 279). Writing for the fourdissenters in Iqbal, Justice Souter argued that the majority'sanalysis overlooked a crucial concession that Ashcroft and Mueller madeon the issue of supervisory liability, under which Ashcroft and Muelleragreed "that they would be subject to supervisory liability if they'had actual knowledge of the assertedly discriminatory nature ofthe classification of suspects as being "of high interest" andthey were deliberately indifferent to that discrimination.'"Id. at 1956 (Souter, J., dissenting) (quoting Brief for the Petitionersat 50, Iqbal, 129 S. Ct. 1937 (No. 07-1015)). Justice Souter argued thatin light of "the parties' agreement as to the standard ofsupervisory liability," the majority should not have "suasponte decide[d] the scope of supervisory liability here." Id.

(86.) Id. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.544, 555, 557 (2007)) (alteration in original) (citation omitted).

(87.) Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570).

(88.) Id.

(89.) Id. at 1950.

(90.) Id. at 1949.

(91.) Id.

(92.) Id. at 1950.

(93.) Id. ("When there are well-pleaded factual allegations, acourt should assume their veracity....").

(94.) Id.

(95.) Second Amended Complaint and Jury Demand [paragraph] 47,Elmaghraby v. Ashcroft, No. 04-CV-1809, 2005 WL 2375202 (E.D.N.Y. Sept.27, 2005), aff'd in part, rev'd in part sub. nom. Iqbal v.Hasty, 490 F.3d 143 (2d. Cir. 2007), rev'd sub nom. Ashcroft v.Iqbal, 129 S. Ct. 1937 (2009) [hereinafter Iqbal Complaint]; see alsoIqbal, 129 S. Ct. at 1944, 1951 (quoting paragraph 47 of the IqbalComplaint).

(96.) Iqbal Complaint, supra note 95, [paragraph] 69; see alsoIqbal, 129 S. Ct. at 1944, 1951 (quoting Iqbal Complaint, supra note 95,[paragraph] 69).

(97.) Iqbal Complaint, supra note 95, [paragraph] 96; see alsoIqbal, 129 S. Ct. at 1944, 1951 (quoting Iqbal Complaint, supra note 95,[paragraph] 96). The harsh conditions of confinement were describedearlier in the complaint. See Iqbal Complaint, supra note 95,[paragraph][paragraph] 82-95 (alleging that Iqbal and others had been"kept in solitary confinement, not permitted to leave their cellsfor more than one hour each day with few exceptions, verbally andphysically abused, routinely subjected to humiliating and unnecessarystrip and body-cavity searches, denied access to basic medical care,denied access to legal counsel, [and] denied adequate exercise andnutrition").

(98.) Iqbal Complaint, supra note 95, [paragraph][paragraph] 10-11;see also Iqbal, 129 S. Ct. at 1944, 1951 (quoting Iqbal Complaint, supranote 95, [paragraph][paragraph] 10-11).

(99.) Iqbal, 129 S. Ct. at 1951 (quoting Bell Atl. Corp. v.Twombly, 550 U.S. 544, 555 (2007)).

(100.) Id.

(101.) Id.

(102.) Id.

(103.) Id. at 1952 (quoting Iqbal Complaint, supra note 95,[paragraph][paragraph] 69-70); see also id. ("But even if thecomplaint's well-pleaded facts give rise to a plausible inferencethat respondent's arrest was the result of unconstitutionaldiscrimination, that inference alone would not entitle respondent torelief. It is important to recall that respondent's complaintchallenges neither the constitutionality of his arrest nor his initialdetention in the MDC.").

(104.) Id. ("[T]he complaint does not show, or even intimate,that petitioners purposefully housed detainees in the ADMAX SHU due totheir race, religion, or national origin.").

(105.) Id. (quoting Iqbal Complaint, supra note 95, [paragraph]69).

(106.) Id. at 1953.

(107.) Id. (citations omitted) (quoting FED. R. CIV. P. 1) (citingBell Atl. Corp. v. Twombly, 550 U.S. 544, 554-56 & n.3 (2007)).

(108.) Id.

(109.) See, e.g., Spencer, supra note 7, at 431 ("Noticepleading is dead. Say hello to plausibility pleading." (footnoteomitted)); see also Bone, supra note 10, at 875 ("Many judges andacademic commentators read the decision as overturning fifty years ofgenerous notice pleading practice....").

(110.) Iqbal, 129 S. Ct. at 1950.

(111.) See, e.g., Ides, supra note 10, at 633 ("[I]t isdifficult if not impossible to distinguish between the supposedlysufficient 'negligently drove' allegation in [former] Form 9[now Form 11], where no specific facts of negligence are alleged, andthe supposedly inadequate, 'fact-deficient' allegation of anantitrust conspiracy (or any other type of conspiracy)...."); seealso Twombly, 550 U.S. at 576 (Stevens, J., dissenting) (noting thatalthough current Form 11's "asserted ground forrelief--namely, the defendant's negligent driving--would have beencalled a 'conclusion of law' under the code pleading ofold[,].... that bare allegation suffices under a system that'restrict[s] the pleadings to the task of general notice-giving andinvest[s] the deposition-discovery process with a vital role in thepreparation for trial'" (alterations in original) (citationomitted)).

(112.) See Twombly, 550 U.S. at 584-86 (Stevens, J., dissenting)("[I]n Swierkiewicz, we were faced with a case more similar to thepresent one than the majority will allow." (citation omitted));Ides, supra note 10, at 634 ("[A] 'naked' allegation ofconspiracy would appear to be on the same footing as the'naked' allegation of illicit motive as inSwierkiewicz."); Spencer, supra note 7, at 477 (arguing thatTwombly "promulgate[d] the very class of pleading standard that itonly recently rejected in Swierkiewicz"); see also Beck &Herrmann, supra note 13 ("[W]e have to conclude (and we're notalone) that Swierkiewicz was impliedly overruled [by Iqbal].');Dodson, supra note 12 ("[Iqbal] did not cite to Swierkiewicz v.Sorema N.A., a discrimination case that may now be effectivelyoverruled.").

(113.) See, e.g., Epstein, supra note 10, at 72 (arguing thatnotice pleading "allows the plaintiff to extort a positivesettlement in a worthless case, by inaugurating extensive discoveryproceedings").

(114.) See, e.g., Frank H. Easterbrook, Comment, Discovery asAbuse, 69 B.U.L. REV. 635, 638-39 (1989) (noting that the filing of"a sketchy complaint" is sufficient to launch potentially"abusive discovery"); Epstein, supra note 10, at 71 ("Theeffort to handle the problem of too much discovery boils down inpractice to the delicate issue of whether Rule 8, which is directedtoward securing the sufficiency of the pleadings, can be brought to bearin cases where the challenge is to the adequacy of the underlyingfacts."); see also AM. COLL. OF TRIAL LAWYERS & INST. FOR THEADVANCEMENT OF THE AM. LEGAL SYS., FINAL REPORT 1, 5 (2009) (expressing"concerns that problems in the civil justice system, especiallythose relating to discovery, have resulted in unacceptable delays andprohibitive expense" and arguing that "[n]otice pleadingshould be replaced by fact-based pleading"); Beck & Herrmann,supra note 13 ("Liberal discovery is what killed liberalpleading.").

(115.) See Twombly, 550 U.S. at 559; see also Bone, supra note 10,at 919 ("[Twombly] assumes that the cause of meritless filings isasymmetry of discovery costs and the settlement leverage itconfers.").

(116.) See, e.g., Robert G. Bone, Modeling Frivolous Suits, 145 U.PA. L. REV. 519, 589 (1997) (noting that a strict pleading standard"risks screening out meritorious cases when investigation costs aretoo high for plaintiffs to obtain the necessary information beforefiling"); Hoffman, supra note 10, at 1263 ("[B]ecause ofinformation asymmetries, when a heightened pleading standard is imposed,some meritorious cases will not be filed and, further, some that arefiled will be dismissed (or settled for marginal value).");Spencer, supra note 7, at 481 ("[P]lausibility pleading rejectspotentially valid, meritorious claims.").

(117.) See Twombly, 550 U.S. at 586-87 (Stevens, J., dissenting)("'[I]n antitrust cases, where the proof is largely in thehands of the alleged conspirators, dismissals prior to giving theplaintiff ample opportunity for discovery should be granted verysparingly.'" (quoting Hosp. Bldg. Co. v. Trs. of Rex Hosp.,425 U.S. 738, 746 (1976)) (citation omitted)); Hoffman, supra note 10,at 1261 ("It is not uncommon for information that is needed todemonstrate the existence of a viable claim to lie solely within theexclusive knowledge and control of another."); Marcus, supra note6, at 468 (noting that a plaintiff may be "unable to providedetails because only the defendant possesses such information" andthat, therefore, "[t]o insist on details as a prerequisite todiscovery is putting the cart before the horse"); Spencer, supranote 7, at 471 ("[R]equiring plaintiffs to offer factualallegations that plausibly suggest liability is a particular burden whenkey facts are likely obtainable only through discovery...."); AdamN. Steinman, What Is the Erie Doctrine? (And What Does It Mean for theContemporary Politics of Judicial Federalism?), 84 NOTRE DAME L. REV.245, 293 (2008) (arguing that plaintiffs might "not have access tothe factual information needed to comply with [stricter] pleadingstandards" because "[i]n many instances, the primary conductthat is the basis for the lawsuit generates a situation where factualdetails ... are purely in the hands of the defendant").

(118.) See Twombly, 550 U.S. at 572 (Stevens, J., dissenting)(noting that the Twombly complaint was dismissed "without so muchas requiring [the defendants] to file an answer denying that theyentered into any agreement").

(119.) As Charles Clark, the chief drafter of the original FederalRules of Civil Procedure, put it: "we cannot expect the proof ofthe ease to be made through the pleadings" because "such proofis really not their function." Charles E. Clark, The New FederalRules of Civil Procedure: The Last Phase--Underlying Philosophy Embodiedin Some of the Basic Provisions of the New Procedure, 23 A.B.A. J. 976,977 (1937); see also Spencer, supra note 7, at 483 ("[P]lausibilitypleading assigns to complaints a function they cannot truly fulfill....Among the functions that pleadings are most ineffective at fulfilling isproviding courts the ability to determine whether the plaintiff'sclaims are meritorious or can be proved.").

(120.) Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).

(121.) As Professor Steve Burbank argued in his recent testimonybefore the Senate Judiciary Committee, this approach invites the sameform of "cognitive illiberalism" that scholars have identifiedelsewhere in the adjudicative process. See Has the Supreme Court LimitedAmericans' Access to Courts?: Hearing Before the S. JudiciaryComm., 111th Cong. 12-13 (2009), available athttp://judiciary.senate.gov/pdf/ 12-02-09%20Burbank%20Testimony.pdf(Statement of Steven Burbank (citing Dan M. Kahan, David A. Hoffman& Donald Braman, Whose Eyes Are You Going to Believe? Scott v.Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837(2009))). In their article coining this term, Professors Kahan, Hoffman,and Braman critique the Supreme Court's decision in Scott v.Harris, 550 U.S. 372 (2007), which granted summary judgment against aplaintiff who had sued police officers after their pursuit of hisvehicle ended in a crash that caused him serious injuries. Kahan,Hoffman & Braman, supra, at 838-41. Because the Scott Court basedits reasoning on its viewing of a video recording of the car chase,Kahan, Hoffman, and Braman showed the same video to 1350 individuals.Id. They concluded that "the Court in Scott was wrong to privilegeits own view" of the video, id. at 841, based on their data showingthat a viewer's perception varied significantly depending on theviewer's personal background, experiences, ideology, values, andsociodemographic characteristics, Id. at 864-81. So too is ajudge's perception of a claim's plausibility likely to beshaped by these predispositions, which may not match those of thelitigants affected. Statement of Stephen B. Burbank, supra, at 12-13.

(122.) See supra notes 116-17; see also Hoffman, supra note 10, at1261-63 ("Why should we trust our judgment as to the ...'implausibility' of the plaintiff's claims when we havedenied the claimant any opportunity to gather additional facts ofwrongdoing that may otherwise be hidden from view?").

(123.) Twombly, 550 U.S. at 593-94 n.13 (2007) (Stevens, J.,dissenting).

(124.) See FED. R. Cry. P. 16(c)(2)(F) (authorizing the court to"take appropriate action on ... controlling and schedulingdiscovery"); FED. R. CIV. P. 26(b)(2) (authorizing the court toorder limitations on discovery).

(125.) Easterbrook, supra note 114, at 638 ("Judges can dolittle about impositional discovery when parties control the legalclaims to be presented and conduct the discovery themselves."); seealso Twombly, 550 U.S. at 560 n.6 (noting that "the hope ofeffective judicial supervision is slim").

(126.) See supra notes 88-94 and accompanying text.

(127.) Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).

(128.) Iqbal Complaint, supra note 95, [paragraph] 96; see alsosupra note 97.

(129.) Iqbal, 129 S. Ct. at 1951 ("To be clear, we do notreject these bald allegations on the ground that they are unrealistic ornonsensical.... It is the conclusory nature of respondent'sallegations, rather than their extravagantly fanciful nature, thatdisentitles them to the presumption of truth.").

(130.) Id. ("We next consider the factual allegations inrespondent's complaint to determine if they plausibly suggest anentitlement to relief.... Taken as true, these allegations areconsistent with petitioners' purposefully designating detainees'of high interest' because of their race, religion, ornational origin. But given more likely explanations, they do notplausibly establish this purpose.").

(131.) Id. (quoting Iqbal Complaint, supra note 95, [paragraph]47).

(132.) Id. at 1951-52.

(133.) See id. at 1950 (2009) ("Our decision in Twomblyillustrates the two-pronged approach.").

(134.) Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)(emphasis added).

(135.) Id. at 557 (emphasis added).

(136.) See Iqbal, 129 S. Ct. at 1950 ("[Twombly] first notedthat the plaintiffs' assertion of an unlawful agreement was a'legal conclusion' and, as such, was not entitled to theassumption of truth."). But see Ides, supra note 10, at 635(arguing that the Twombly holding "did not in any manner depend onthe plaintiffs having stated a 'naked' allegation ofconspiracy").

(137.) Twombly, 550 U.S. at 557.

(138.) Iqbal, 129 S. Ct. at 1950.

(139.) See supra note 126 and accompanying text.

(140.) Iqbal, 129 S. Ct. at 1950 (2009). This Article generallyuses the term "nonconclusory" to describe the category ofallegations that must be accepted as true at the pleadings phase afterIqbal. Twombly and Iqbal at times use other terms such as"well-pleaded" or "factual." See, e.g., id. (notingthe Twombly complaint's "well-pleaded, nonconclusory factualallegation of parallel behavior"). One danger with the term"factual," however, is that it could misleadingly suggest areturn to what is often known as "fact pleading." As explainedinfra note 283 and accompanying text, Twombly and Iqbal should not beread as imposing a traditional fact-pleading or code-pleading regime.The term "factual" could also transplant onto pleadingdoctrine the problematic "law-fact distinction" that hasbedeviled other areas of law. Thomburg, supra note 12, at 5 (criticizingIqbal as hinging on "labelling] various issues as law or fact"and noting that "[t]he Supreme Court itself, in other contexts, hasconfessed that the law-fact distinction is problematic, calling it'elusive,' 'slippery,' and'vexing'"); see also Walter Wheeler Cook, Statements ofFact in Pleading Under the Codes, 21 COLUM. L. REV. 416, 417 (1921)("[T]here is no logical distinction between statements which aregrouped by the courts under the phrases 'statements of fact'and 'conclusions of law.'"). That said, the choice oflabels is not ultimately dispositive, the terms"nonconclusory," "well-pleaded," and"factual" do not by themselves shed much light on whatprecisely is required for an allegation to be sufficiently"nonconclusory," "well-pleaded," or"factual." What is needed, rather, is a deeper conceptualunderstanding of the characteristics an allegation must have in order tobe accepted as true at the pleadings phase. This Article confronts thisquestion in Part IV.

(141.) It is no surprise that the Iqbal majority never says thisexplicitly, because it concluded that Iqbal had failed to makenonconclusory allegations on each element of his claim. But JusticeSouter's dissent, which follows precisely the same doctrinalstructure as the majority, illustrates this idea perfectly. He foundthat Iqbal's allegations were not "confined to naked legalconclusions" and that those allegations, if true, "aresufficient to make [Ashcroft and Mueller] liable." Iqbal, 129 S.Ct. at 1960 (Souter, J., dissenting). He concluded: "Iqbal'scomplaint therefore contains 'enough facts to state a claim torelief that is plausible on its face.'" Id. (quoting Twombly,550 U.S. at 570). In other words, when nonconclusory allegations"are sufficient to make [defendants] liable," the complaint"therefore contains 'enough facts to state a claim for reliefthat is plausible on its face.'" Id. No secondary inquiry intothe plausibility of those nonconclusory allegations is required. JusticeKennedy's majority opinion does not suggest otherwise; again, thedifference is simply that the majority found the crucial allegations tobe conclusory and thus had to turn to the plausibility inquiry to seewhether the claim could nonetheless proceed.

(142.) Put another way, a court that disregards nonconclusoryallegations on plausibility grounds would be disobeying Iqbal step two,because it would not be accepting such allegations as true.

(143.) See Twombly, 550 U.S. at 565-69; see also Iqbal, 129 S. Ct.at 1950 (noting the Twombly complaint's "well-pleaded,nonconclusory factual allegation of parallel behavior").

(144.) Iqbal Complaint, supra note 95, [paragraph] 47; see alsoIqbal, 129 S. Ct. at 1951 (quoting the same language from the complaintand describing it as a "factual allegation[]" to be"[t]aken as true").

(145.) Iqbal Complaint, supra note 95, [paragraph] 69; see alsoIqbal, 129 S. Ct. at 1951 (quoting the same language from the complaintand describing it as a "factual allegation[]" to be"[t]aken as true").

(146.) See supra notes 143-45.

(147.) See supra notes 92-94 and accompanying text.

(148.) See, e.g., Twombly, 550 U.S. at 566 ("[N]othingcontained in the complaint invests either the action or inaction allegedwith a plausible suggestion of conspiracy.... [N]othing in the complaintintimates that the resistance to the upstarts was anything more than thenatural, unilateral reaction of each ILEC intent on keeping its regionaldominance." (emphasis added)).

(149.) To illustrate the fallacy of making"implausibility" a basis for disregarding allegations in acomplaint, recall the complaint in Twombly. Twombly was dismissed forlack of sufficient allegations showing that the Baby Bells had agreednot to compete with one another. See supra Part I.B. Imagine, however,that the complaint had alleged that the CEOs of each of the Baby Bellsreserved a private room at a high-priced restaurant in Bermuda inJanuary 1996, and then alleged a second-by-second transcript of exactlywhat was said by whom at the meeting as they hatched theirconspiratorial regime. Surely such allegations, if accepted as true,would plausibly suggest the existence of a conspiracy. But an open-endedplausibility inquiry could permit the Court to require furtherallegations to "plausibly suggest" the truth of thoseallegations, and further allegations to "plausibly suggest"the truth of any additional allegations. This is an unworkable approach.If the plausibility inquiry is what the Twombly and Iqbal majorities sayit is--an assessment of whether certain accepted allegations raise asufficient inference of some other condition's truth--then itcannot also be the test for determining which allegations must and mustnot be accepted as true.

(150.) See Achtman v. Kerby, McInerney & Squire, LLP, 464 F.3d328, 337 (2d Cir. 2006) ("[C]onclusory allegations or legalconclusions ... will not suffice to defeat a motion to dismiss."(citation omitted)); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973(9th Cir. 2004) ("[T]he court is not required to accept legalconclusions...."); see also Moya v. Schollenbarger, 465 F.3d 444,455 (10th Cir. 2006) (describing "the normal standard we apply todismissals generally" as one that "accept[s] as true allwell-pleaded facts, as distinguished from conclusory allegations"(quoting Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir.1998))); Rivera-Powell v. N.Y. City Bd. of Elections, 470 F.3d 458, 470(2d Cir. 2006) (rejecting a "conclusory" allegation).

(151.) See supra Part II.

(152.) Even if allegations may not be disregarded for lack of"plausibility" as that concept is used in Twombly and Iqbal,some allegations may be so patently ridiculous that they should not bepresumed true at the pleadings phase. Justice Souter alluded to thisidea in his Iqbal dissent:

 Twombly does not require a court at the motion-to-dismiss stage to consider whether the factual allegations are probably true. We made it clear, on the contrary, that a court must take the allegations as true, no matter how skeptical the court may be. The sole exception to this rule lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff's recent trip to Pluto, or experiences in time travel. That is not what we have here.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1959 (2009) (Souter, J.,dissenting) (emphasis added) (citations omitted). Any such rule,however, would be a separate aspect of pleading doctrine, not onederived from Iqbal's two-step conclusory/plausibility analysis.Justice Souter's point about "little green men" was notthat such allegations should be disregarded as implausible under Twomblyand Iqbal; it was to indicate a possible exception to the principle thatnonconclusory allegations must be accepted as true. To Souter, thecrucial allegations in Iqbal were more than "naked legalconclusions," id. at 1960, and thus should have been accepted astrue unless they were of the "little green men" variety (whichthey weren't). The Iqbal majority's reasoning confirms thatsuch outlandish allegations were not the Court's concern in Twomblyand Iqbal:

 To be clear, we do not reject [Iqbal's] bald allegations on the ground that they are unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected the plaintiffs' express allegation ... because it thought that claim too chimerical to be maintained. It is the conclusory nature of [Iqbal's] allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth."

Id. at 1951 (majority opinion) (emphasis added). Courts couldpotentially deal with allegations that are indeed"unrealistic," "nonsensical," "too chimericalto be maintained," or "extravagantly fanciful," id., viathe rules governing judicial notice. See Clermont & Yeazell, supranote 10, at 836 & n.57 (arguing that "[d]ismissing a complaintcomposed of such allegations would not have been controversial"because "[a] court will disregard an allegation in a pleading thatcontradicts a proposition judicially noticed"); see also id. at 857n. 133 (quoting Professor David Shapiro's proposal to legislativelyoverrule Iqbal that would retain courts' power to disregardallegations when "the rules governing judicial notice require adetermination that the allegation is not credible").

(153.) See infra Part IV.

(154.) See supra notes 109-12 and accompanying text.

(155.) Leatherman v. Tarrant County Narcotics Intelligence &Coordination Unit, 507 U.S. 163, 168 (1993). It follows that there is nopower to "overrule" the Federal Rules' Forms (including,for example, Form 11), because these Forms are binding as a matter ofpositive law via the Federal Rules of Civil Procedure. See supra note 26and accompanying text (explaining how the Rules themselves provide thatthe Forms "suffice under these rules and illustrate the simplicityand brevity that these rules contemplate").

(156.) 355 U.S. 41 (1957).

(157.) Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546, 563 (2007)(quoting Conley, 355 U.S. at 45-46); see also id. at 563 ("Thephrase is best forgotten...."); Spencer, supra note 7, at 463(stating that Twombly "attempted to isolate and discredit only[Conley's] 'no set of facts' language whilesimultaneously purporting to retain the notice pleading system largelyintact").

(158.) Twombly, 550 U.S. at 561 (internal quotation marks omitted).The Twombly Court's analysis of Conley's "no set offacts" phrase further confirms that, as discussed above in PartIII.A, the principal concern is "conclusory" allegations,rather than not implausible ones. See id. ("On such a focused andliteral reading ... a wholly conclusory statement of claim would survivea motion to dismiss whenever the pleadings left open the possibilitythat a plaintiff might later establish some set of undisclosed facts tosupport recovery." (emphasis added)).

(159.) Marcus, supra note 6, at 434 (emphasis added).

(160.) See also Ides, supra note 10, at 629 (calling Twombly'streatment of the no-set-of-facts language a "sensible'revision' of Conley").

(161.) Cf Twombly, 550 U.S. at 577 (Stevens, J., dissenting)("If Conley's 'no set of facts' language is to beinterred, let it not be without a eulogy.").

(162.) See Twombly, 550 U.S. at 583 (Stevens, J., dissenting)("Conley's statement that a complaint is not to be dismissedunless 'no set of facts' in support thereof would entitle theplaintiff to relief is hardly 'puzzling.' It reflects aphilosophy that, unlike in the days of code pleading, separating thewheat from the chaff is a task assigned to the pretrial and trialprocess." (citation omitted)).

(163.) Id. at 556 (majority opinion) (citation omitted).

(164.) Id.

(165.) Conley, 355 U.S. at 47 (emphasis added) (citing FED. R. CIV.P. 8(a)(2)); see also Twombly, 550 U.S. at 555 ("Federal Rule ofCivil Procedure 8(a)(2) requires only 'a short and plain statementof the claim showing that the pleader is entitled to relief,' inorder to 'give the defendant fair notice of what the ... claim isand the grounds upon which it rests.'" (quoting Conley, 355U.S. at 47) (alteration in original)).

(166.) See Twombly, 550 U.S. at 555-56 & n.3 (citing priorSupreme Court pleading decisions, for example, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), and Scheuer v. Rhodes, 416 U.S. 232 (1974)).The Court's Swierkiewicz decision is described supra notes 28-34and accompanying text.

(167.) Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009)(noting that "Swierkiewicz is based, in part, on Conley" andconcluding: "because Conley has been specifically repudiated ... sotoo has Swierkiewicz, at least insofar as it concerns pleadingrequirements and relies on Conley"). Despite this conclusion, theThird Circuit ultimately reversed the lower court's dismissal ofthe Fowler complaint. Id. at 211-14. In fact, Fowler's applicationof Twombly and Iqbal shows a remarkable sensitivity to the principlesunderlying Swierkiewicz and other aspects of the pre-Twombly regime. Seeinfra notes 300-04.

(168.) See Swierkiewicz, 534 U.S. at 514 (citing Hishon v. King& Spalding, 467 U.S. 69, 73 (1984)).

(169.) Twombly, 550 U.S. at 561.

(170.) See Swierkiewicz, 534 U.S. at 514 ("[P]etitioner'scomplaint easily satisfies the requirements of Rule 8(a) because itgives respondent fair notice of the basis for petitioner'sclaims."); id. ("The[] allegations give respondent fair noticeof what petitioner's claims are and the grounds upon which theyrest. See Conley, [355 U.S.] at 47.").

(171.) See supra note 165 and accompanying text.

(172.) To accept the logic that Twombly repudiated any decisionthat relied on Conley would lead to the paradoxical conclusion thatTwombly repudiated itself, because Twombly also relied on Conley.

(173.) See supra notes 109-12 and accompanying text.

(174.) Agostini v. Felton, 521 U.S. 203, 237 (1997) (quotingRodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484(1989)); see also id. at 238 (noting that the district court was"correct to recognize that the motion had to be denied unless anduntil this Court reinterpreted the binding precedent"); Scheiber v.Dolby Labs., Inc., 293 F.3d 1014, 1018 (7th Cir. 2002) (Posner, J.)("[W]e have no authority to overrule a Supreme Court decision nomatter ... how out of touch with the Supreme Court's currentthinking the decision seems."); Nat'l Foreign Trade Council v.Natsios, 181 F.3d 38, 58 (1st Cir. 1999) ("Scholarly debate aboutthe continuing viability of a Supreme Court opinion does not, of course,excuse the lower federal courts from applying that opinion."),aff'd sub nom. Crosby v. Nat'l Foreign Trade Council, 530 U.S.363 (2000); cf. Ides, supra note 10, at 635 ("Of course, the Courtis free to overrule any line of cases, but in the absence of an expressoverruling one should at least be circ*mspect in concluding that theexecution has occurred.").

(175.) Stare decisis would also require the Supreme Court to try toreconcile its prior decisions if it were to revisit this issue in alater case. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,99-100 (1990) (White, J., concurring) ("[T]he doctrine of staredecisis demands that we attempt to reconcile our prior decisions ratherthan hastily overrule some of them."); Ex parte Harding, 219 U.S.363, 369-70, 378 (1911) (noting an "apparent conflict betweencertain decided cases" and concluding that "[w]e must ...reconcile the cases [unless] this cannot be done"). Although"stare decisis is not an inexorable command," PlannedParenthood v. Casey, 505 U.S. 833, 854 (1992) (citation omitted), todeviate from the holdings in pre-Twombly cases (for example,Swierkiewicz and Leatherman) in some future case would require ajustification more compelling than "a present doctrinal dispositionto come out differently from the [earlier] Court," id. at 864. Theneed to respect stare decisis is especially strong in cases where theprecedent is based on the interpretation of sub-constitutional law suchas the Federal Rules of Civil Procedure. See Hilton v. S.C. Pub. Rys.Comm'n, 501 U.S. 197, 202 (1991) (noting that"[c]onsiderations of stare decisis have special force in the areaof statutory interpretation," especially in a case where"Congress has had almost 30 years in which it could have correctedour [earlier] decision ... if it disagreed with it, and has not chosento do so" (internal quotations omitted)); see also Spencer, supranote 7, at 462 (arguing that the justifications for strong stare decisiswith respect to judicial interpretation of statutes "apply withlike force" to judicial interpretation of the Federal Rules).

(176.) Conley v. Gibson, 355 U.S. 41, 47 (1957).

(177.) Charles E. Clark, Simplified Pleading, 2 FED. RULESDECISIONS 456, 460 (1943) (emphasis added).

(178.) Id.

(179.) See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)(rejecting the argument "that Twombly had repudiated the generalnotice-pleading regime of Rule 8"). The Brooks court concludes:

 This court took Twombly and Erickson together to mean that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8. This continues to be the case after Iqbal.

Id. (internal quotations and citations omitted).

(180.) Some empirical studies reveal an increase in dismissal ratesin the years since Twombly and the months since Iqbal, but they alsoreveal a remarkably high dismissal rate under the ostensibly lenientpre-Twombly pleading regime. See, e.g., Patricia W. Hatamyar, The Tao ofPleading: Do Twombly and Iqbal Matter Empirically?, 59 AM. U. L. REV.553, 556 (2010) (presenting data suggesting that the dismissal rate wasforty-six percent during the two years prior to Twombly, forty-eightpercent during the two years between Twombly and Iqbal, and fifty-sixpercent after Iqbal). This suggests that even Conley's "fairnotice" standard was sufficiently malleable to permit frequentdismissals at the pleadings phase. See supra note 6.

(181.) See supra note 165 and accompanying text.

(182.) See, e.g., Steinman, supra note 117, at 297 & 302 n.307(noting "the conventional wisdom that plaintiffs fare better instate court and defendants fare better in federal court" and citingauthority that the Roberts Court "has quickly gained a strongpro-business reputation"). For empirical data, see Kevin M.Clermont & Theodore Eisenberg, Do Case Outcomes Really RevealAnything About the Legal System? Win Rates and Removal Jurisdiction, 83CORNELL L. REV. 581, 596 (1998) (noting a very low percentage ofplaintiff win rates in removed cases and a significantly higherplaintiff win rate in cases adjudicated originally in federal courts);Thomas E. Willging & Shannon R. Wheatman, Attorney Choice of Forumin Class Action Litigation: What Difference Does It Make?, 81 NOTRE DAMEL. REV. 591, 638-40 (2006) (describing higher median recoveries andattorneys fees in state court class actions than in federal court classactions).

(183.) See supra notes 156-66 and accompanying text.

(184.) See supra notes 156-57 and accompanying text.

(185.) Speculation about whether a broader agenda might motivatethe Court to make future changes in any given area of law cannotconstitute a binding aspect of the Court's case law. TheCourt's current decisions are binding, not anticipated futuredecisions or a general sense of the Court's underlying motivations.The principle that lower courts must not decide for themselves thatearlier Supreme Court decisions have been implicitly overruled confirmsthis. See supra notes 173-75 and accompanying text.

(186.) Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007).

(187.) Id. at 547.

(188.) See Julie Creswell, U.S. Indictment for Big Law Firm inClass Actions, N.Y. TIMES, May 19, 2006, at A1. See generally Lisa L.Casey, Class Action Criminality, 34 J. CORP. L. 153 (2008).

(189.) Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (quotingAshcroft v. Iqbal, 490 F.3d 143, 179 (2007) (Cabranes, J., concurring));see also Richard Bernstein, Threats and Responses: Pieces of a Puzzle;On Plotters' Path to U.S., a Stop at bin Laden Camp, N.Y. TIMES,Sept. 10, 2002, at A1 (calling the 9/11 attacks "the deadliestforeign attack on American soil").

(190.) This is precisely why it is often said--per JusticeHolmes--that "hard cases make bad law." N. Sec. Co. v. UnitedStates, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting). A corollaryto this maxim might be that one should not read a hard case to make badlaw (or to overrule prior case law) if that reading can be avoided. Seealso supra Part III.B (explaining why lower courts should not readTwombly and Iqbal as implicitly overruling the Supreme Court'spre-Twombly pleading precedent).

(191.) See supra notes 186 & 189 and accompanying text. Indeed,the Court's concerns about the burdens of discovery in Twombly andIqbal are closely tied to the factual context of those cases. See Iqbal,129 S. Ct. at 1953 (noting that avoiding the burdens of "disruptivediscovery" is "especially important" in a case where the"Government officials are charged with responding to ... a nationaland international security emergency unprecedented in the history of theAmerican Republic" (citation and internal quotation marksomitted)); id. at 1954 (noting that the lower court's"promise[] [of] minimally intrusive discovery.... providesespecially cold comfort in this pleading context, where we are impelledto give real content to the concept of qualified immunity for high-levelofficials who must be neither deterred nor detracted from the vigorousperformance of their duties"); Twombly, 550 U.S. at 558 (notingthat "proceeding to antitrust discovery can be expensive"(emphasis added)); id. at 559 (emphasizing that the Twombly defendantsin particular have "many thousands of employees generating reamsand gigabytes of business records").

(192.) An analogy might be drawn to two blockbusterconstitutional-law opinions from last decade--Lopez and Morrison--thatappeared to place new limits on Congress' power to legislate underthe Commerce Clause. See United States v. Morrison, 529 U.S. 598 (2000);United States v. Lopez, 514 U.S. 549 (1995). Lopez and Morrison werethought to reflect a paradigm shift in the Supreme Court's view ofCongressional power. See, e.g., Richard W. Garnett, The New Federalism,the Spending Power, and Federal Criminal Law, 89 CORNELL L. REV. 1,11-13 (2003) (describing a federalism "revival" under theRehnquist Court that included Commerce Clause decisions such as Lopezand Morrison). But when the Court revisited the issue a few years later,its approach seemed far more consistent with the long-standing pre-Lopezview. See Gonzales v. Raich, 545 U.S. 1 (2005) (upholding Congress'power to criminalize the possession of marijuana for medicinalpurposes); David A. Strauss, The Modernizing Mission of Judicial Review,76 U. CHI. L. REV. 859, 889-90 (2009) (noting that Lopez and Morrison"left the door open for the Court to retreat--as it arguably did,in Gonzales v. Raich"); see also Lino A. Graglia, Lopez, Morrison,and Raich: Federalism in the Rehnquist Court, 31 HARV. J.L. & PUB.POL'Y 761, 780-85 (2008) (arguing that the Court's decision inRaich had "halted, if not reversed" the "Lopezrevolution").

(193.) See supra note 174 and accompanying text.

(194.) See supra note 126 and accompanying text (describingIqbal's two steps).

(195.) FED. R. CIV. P. 8(a)(2) (emphasis added).

(196.) See Iqbal, 129 S. Ct. at 1951-52 ("On the factsrespondent alleges the arrests Mueller oversaw were likely lawful andjustified by his nondiscriminatory intent to detain aliens who wereillegally present in the United States and who had potential connectionsto those who committed terrorist acts. As between that obviousalternative explanation for the arrests, and the purposeful, invidiousdiscrimination respondent asks us to infer, discrimination is not aplausible conclusion." (internal quotations and citationsomitted)); Twombly, 550 U.S. at 554 (noting that "we havepreviously hedged against false inferences from identical behavior at anumber of points in the trial sequence"); id. at 556 ("Askingfor plausible grounds to infer an agreement does not impose aprobability requirement at the pleading stage; it simply calls forenough fact to raise a reasonable expectation that discovery will revealevidence."); id. at 566 ("[T]here is no reason to infer thatthe companies had agreed among themselves to do what was only naturalanyway.").

(197.) See supra Part III.A.

(198.) See, e.g., Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988)("[W]e need not accept conclusory allegations completely lackingevidentiary support.").

(199.) See supra notes 143-49 and accompanying text.

(200.) See Twombly, 550 U.S. at 565-69; see also Iqbal, 129 S. Ct.at 1950 (noting the Twombly complaint's "well-pleaded,nonconclusory factual allegation of parallel behavior").

(201.) See supra notes 53-56 and accompanying text.

(202.) Iqbal Complaint, supra note 95, [paragraph] 47; see alsoIqbal, 129 S. Ct. at 1951 (quoting same and describing it as a"factual allegation" to be "[t]aken as true").

(203.) Iqbal Complaint, supra note 95, [paragraph] 69; see alsoIqbal, 129 S. Ct. at 1951 (quoting same and describing it as a"factual allegation" to be "[t]aken as true").

(204.) FED. R. CIV. P. 8(a)(2).

(205.) FED. R. CIV. P. 8(b)(1)(B); accord FED. R. CIV. P. 8(d)(1)("Each allegation must be simple, concise, and direct.").

(206.) FED. R. CIV. P. 10(b).

(207.) This conceptual problem does not arise for heightenedpleading standards like the Private Securities Litigation Reform Act(PSLRA), which requires supporting allegations only for certain types ofallegations. See supra note 35. Under the PSLRA, the targeted allegationthat the defendant "acted with the required state of mind"must be supported by other allegations that "giv[e] rise to astrong inference," 15 U.S.C. [section] 78u-4(b)(2) (2006), but thesupporting allegations must themselves be accepted as true. To requireevidentiary support for every allegation, however, is inherentlyunworkable.

(208.) The hypothetical complaint discussed supra note 149 alsoconfirms the fallacy of requiring a complaint to provide evidentiarysupport for the allegations contained therein. Imagine that theplaintiff in Twombly had alleged that the CEOs of each of the Baby Bellsreserved a private room at a high-priced restaurant in Bermuda inJanuary 1996, and then alleged a second-by-second transcript of exactlywhat was said by whom at the meeting as they hatched theirconspiratorial regime. If we truly define conclusory in evidentiaryterms, not even such very detailed allegations would be sufficient. Theydo not, after all, provide any evidentiary support that such a meetingin fact occurred. They are just allegations that, under an evidentiaryapproach, would themselves require some further allegations to suggesttheir truth.

(209.) See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 327(1986); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

(210.) See, e.g., Epstein, supra note 10, at 62 ("In reality,Twombly ... was a disguised motion for summary judgment.");Hoffman, supra note 10, at 1240 ("It is now plain--if it was notalready--that Rules 12(b)(6) and 56 are hinged together doctrinally. As[Twombly] saw it, if an antitrust plaintiff's complaint cannotsurvive summary judgment ... then why delay the inevitable?");Spencer, supra note 7, at 487 ("Twombly endorses parity between thelevel of scrutiny applied to claims at the Rule 12(b)(6) and Rule 56stages."); Thomas, supra note 10, at 1857 (noting that Twombly"established [a] standard[] for dismissal at the motion to dismissstage that [is] similar to the standard for summary judgment").

(211.) See, e.g., Hoffman, supra note 10, at 1256 ("[T]reatinga rigorous pleading sufficiency standard congruently with summaryjudgment--that is, as nothing more than an earlier but similar stage ofjudicial gatekeeping--is misguided."); Spencer, supra note 7, at488 ("[I]t is inappropriate to apply the type of scrutiny appliedat the summary judgment stage to the pleadings of litigants that haveyet to have access to discovery."). But cf Epstein, supra note 10,at 82 (arguing that "treat[ing] the [Twombly] defendant'smotion to dismiss as though it set up a 'mini-summaryjudgment'" was a desirable result given the nature of theclaim presented in Twombly).

(212.) FED. R. CIV. P. 11(b)(3).

(213.) See Spencer, supra note 7, at 470-72.

(214.) FED. R. CIV. P. 11(b)(3) (emphasis added).

(215.) See Hoffman, supra note 10, at 1253-54 ("[I]mposing aplausibility requirement at Rule 8(a)(2) is probably close--if not (atleast sometimes) equivalent--to the Rule 11(b)(3)proscription againstasserting claims for which there is no evidentiary support and nolikelihood of evidentiary support after a reasonable opportunity forfurther discovery.").

(216.) FED. R. CIV. P. 11(c)(2).

(217.) FED. R. CIV. P. 11(c)(3).

(218.) FED. R. CIV. P. 12(b)(6).

(219.) FED. R. CIV. P. 8(a)(2).

(220.) See Hoffman, supra note 10, at 1254 ("Rule 11 is acertification and sanctioning rule and not normally the vehicle fordismissing insufficient claims."). Tellingly, the defendant inLeatherman attempted to justify a heightened pleading standard as"consistent with a plaintiff's Rule 11 obligation to make areasonable prefiling inquiry into the facts," but a unanimousSupreme Court rejected that argument. Leatherman v. Tarrant CountyNarcotics Intelligence & Coordination Unit, 507 U.S. 163, 167(1993).

(221.) FED. R. CIV. P. 84.

(222.) FED. R. CIV. P. Form 11, [paragraph] 2.

(223.) But cf. Bone, supra note 10, at 886 (arguing that the merefact a car collided with a pedestrian raises the specter of negligencebecause "drivers do not usually strike pedestrians when drivingwith reasonable care, so the probability of negligence conditional on apedestrian being struck should be quite high"); Spencer, supra note10, at 27 (arguing that "the surrounding fact of the collisionitself creates a presumption of impropriety").

(224.) See Bone, supra note 10, at 886; Spencer, supra note 10, at27.

(225.) FED. R. CIV. P. Form 18, [paragraph] 3.

(226.) See supra notes 156-75 and accompanying text.

(227.) Swierkiewicz v. Sorema N.A., 534 U.S. 506, 509 (2002)(citation and internal quotation marks omitted).

(228.) Id. at 508 n.1.

(229.) Id. at 515 (internal quotation marks omitted).

(230.) Id. at 511.

(231.) Id. at 511-12.

(232.) Id. at 511. Twombly professed consistency with Swierkiewicz,but it also noted that the Swierkiewicz complaint had "detailed theevents leading to his termination, provided relevant dates, and includedthe ages and nationalities of at least some of the relevant personsinvolved with his termination." Bell Atl. Corp. v. Twombly, 550U.S. 544, 570 (2007). The Twombly majority did not, however, indicatethat such information provided evidentiary support forSwierkiewicz's allegation of discriminatory intent. Id. If that hadbeen Twombly's intention, it is hard to see how the Swierkiewiczcomplaint passes muster simply by "detail[ing] the events leadingto his termination, provid[ing] relevant dates, and includ[ing] the agesand nationalities of at least some of the relevant persons involved withhis termination," id., yet it is not sufficient in Iqbal todescribe the enormous impact that Ashcroft and Mueller's policieshad on Arab Muslim men. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951(2009).

(233.) Admittedly, Twombly and Iqbal at times emphasize thelikelihood that the plaintiff's allegations will be supported byevidence. See, e.g., Iqbal, 129 S. Ct. at 1949 ("The plausibilitystandard ... asks for more than a sheer possibility that a defendant hasacted unlawfully." (emphasis added)); Twombly, 550 U.S. at 556("Asking for plausible grounds to infer an agreement does notimpose a probability requirement at the pleading stage; it simply callsfor enough fact to raise a reasonable expectation that discovery willreveal evidence of illegal agreement." (emphasis added)). But suchlanguage addresses the plausibility of a claim after some crucialallegation is disregarded as conclusory; that language does not shedlight on what makes an allegation conclusory in the first instance. Asexplained above, the distinction between the conclusory inquiry and theplausibility inquiry is vital. See supra Part III.A. Indeed, there is agood reason why courts would be more concerned about supporting evidencewhen assessing "plausibility" than when assessing"conclusoriness." A nonconclusory allegation is subject toRule 11's requirement that "factual contentions haveevidentiary support or, if specifically so identified, will likely haveevidentiary support after a reasonable opportunity for furtherinvestigation or discovery." FED. R. CIV. P. 11(b)(3); see alsosupra note 140 (noting how Iqbal equates "factual" with"nonconclusory"). Thus, Rule 11's enforcement mechanismcan police nonconclusory allegations that lack a sufficient likelihoodof evidentiary support. But where a crucial element of a claim isalleged in a solely conclusory fashion, the plaintiff has arguably madeno "factual contention" that would be subject to Rule11's requirement that there is or is likely to be supportingevidence. If so, a court must assure for itself--via the plausibilityinquiry--that the complaint's nonconclusory allegations "raisea reasonable expectation that discovery will reveal [supporting]evidence." Twombly, 550 U.S. at 556.

(234.) Other scholars have recognized that pleadings ought toidentify the events or transactions underlying the plaintiff'sclaim. See Ides, supra note 10, at 607-09 (arguing that federal pleadingstandards include a "Transactional Sufficiency" component that"requires that the pleading contain a factual narrative sufficientto move the underlying claim from the abstract assertion of a right toan assertion that is premised on an actual, identifiable event");see also 5 WRIGHT & MILLER, supra note 3, [section] 1202("[P]leadings under the rules simply may be a general summary ofthe party's position that is sufficient to advise the other partyof the event being sued upon....").

(235.) 544 U.S. 336 (2005).

(236.) Id. at 346-47 (alteration in original) (internal quotationmarks omitted).

(237.) Id. at 347.

(238.) Twombly, 550 U.S. at 555.

(239.) Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

(240.) See FED. R. CIV. P. Form 11, [paragraph] 2 ("On<Date>, at <Place>, the defendant negligently drove a motorvehicle against the plaintiff.").

(241.) See FED. R. CIV. P. Form 18, [paragraph] [paragraph] 2-3.

(242.) See Swierkiewicz Amended Complaint, supra note 29,[paragraph] 12 ("Mr. Swierkiewicz is a native of Hungary."),[paragraph] 13 ("Mr. Swierkiewicz is 53 years old."),[paragraph] [paragraph] 17, 19 (describing the positions the plaintiffheld with the defendant), [paragraph] 37 ("Plaintiffs age andnational origin were motivating factors in [the defendant's]decision to terminate his employment."); see also Swierkiewicz v.Sorema N.A., 534 U.S. 506, 514 (2002) ("Petitioner alleged that hehad been terminated on account of his national origin in violation ofTitle VII and on account of his age in violation of the ADEA.").

(243.) See infra Part IV.F.

(244.) This Article's attempts to distinguish the Twombly andIqbal complaints are not at all intended to find fault withTwombly's or Iqbal's attorneys. In both cases, the complaintswere drafted before the Supreme Court's Twombly decision. And theIqbal complaint was drafted before the Iqbal majority restrictedsupervisory Bivens liability.

(245.) Iqbal Complaint, supra note 95, [paragraph] 96("ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS,SHERMAN, LOPRESTI, and SHACKS each knew of, condoned, and willfully andmaliciously agreed to subject Plaintiffs to these conditions ofconfinement as a matter of policy, solely on account of their religion,race, and/or national origin and for no legitimate penologicalinterest.").

(246.) See infra Part IV.D.

(247.) Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).

(248.) This is an important distinction between Iqbal andSwierkiewicz. Because respondeat superior governs employmentdiscrimination claims like those in Swierkiewicz, see, e.g., 42 U.S.C.[section] 2000e(b) (2006) (defining the term "employer" toinclude any "person engaged in an industry affecting commerce ...and any agent of such a person"), the fact that a plaintiff hasbeen fired for invidious reasons is sufficient to establish a claimagainst the company, regardless of which person at the company did thefiring. This is in contrast to the Bivens claim at issue in Iqbal, forwhich the individual defendant's liability depended on thatindividual's own conduct. See Iqbal, 129 S. Ct. at 1948.

(249.) Iqbal Complaint, supra note 95, [paragraph] [paragraph]47-76.

(250.) Id. [paragraph] 69; see also Iqbal, 129 S. Ct. at 1944, 1951(quoting Iqbal Complaint, supra note 95, [paragraph] 69).

(251.) Indeed, the Iqbal majority emphasized that the complaint didnot at any point allege that the hold-until-cleared policy was adopted"'because of,' not merely 'in spite of,' itsadverse effects upon an identifiable group." Iqbal, 129 S. Ct. at1951 (quoting Pers. Adm'r of Mass. v. Feeney, 442 U.S. 254, 279(1979)).

(252.) See Iqbal Complaint, supra note 95, [paragraph] [paragraph]80-95.

(253.) Id. [paragraph] 96.

(254.) Id. The allegations that Ashcroft and Mueller "knewof" and "condoned" Iqbal's harsh treatment wouldlikely fail as a matter of law in light of Iqbal's restrictions onsupervisory Bivens liability. See supra notes 82-85 and accompanyingtext.

(255.) Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009).

(256.) Consolidated Amended Class Action Complaint [paragraph] 39,Twombly v. Bell Atl. Corp., 313 F. Supp. 2d 174 (S.D.N.Y. 2003) (No. 02Civ. 10220) [hereinafter Twombly Consolidated Amended Complaint].

(257.) Id. [paragraph] 47(a),(e).

(258.) Id. [paragraph] 47(d),(i).

(259.) Id. [paragraph] 47(f),(l).

(260.) Id. [paragraph] 51 (emphasis added).

(261.) Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007)(emphasis added) (footnote omitted).

(262.) Twombly, 550 U.S. at 564-65 (alterations in original)(emphasis added).

(263.) Id. at 564 (emphasis added).

(264.) Id. at 555.

(265.) FED. R. CIV. P. 11(b)(3) (emphasis added) (requiring thatsuch factual contentions be "specifically so identified").

(266.) Twombly, 550 U.S. at 564 (emphasis added).

(267.) FED. R. CIV. P. 8(a)(2) (emphasis added).

(268.) MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 947 (11th ed.2003).

(269.) See supra notes 245-66 and accompanying text.

(270.) COLLEGIATE DICTIONARY, supra note 268, at 947.

(271.) The textual theory proposed here uses this phrase inprecisely the same way as Twombly and Iqbal. Both decisions confirm thatRule 8's requirement that the complaint "show[] that thepleader is entitled to relief' comes into play only at Iqbal steptwo. See Twombly, 550 U.S. at 557 ("The need at the pleading stagefor allegations plausibly suggesting (not merely consistent with)agreement reflects the threshold requirement of Rule 8(a)(2) that the'plain statement' possess enough heft to 'sho[w] that thepleader is entitled to relief.'" (alteration in original)(quoting FED. R. CIV. P. 8(a)(2))); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) ("[W]here the well-pleaded facts do notpermit the court to infer more than the mere possibility of misconduct,the complaint has alleged--but it has not'show[n]'--'that the pleader is entitled torelief.'" (alteration in original) (quoting FED. R. CIV. P.8(a)(2))). These quotes do not indicate that this phrase plays any roleat Iqbal step one, which is the only aspect of the Iqbal test thatallows a court to disregard a complaint's allegations at thepleadings phase. See supra Part III.B.

(272.) See supra Part III.A.2.

(273.) See supra notes 88-94 and accompanying text.

(274.) See supra Part 1V.B.

(275.) See supra Part III.C.

(276.) FED. R. CIV. P. 8(a)(2).

(277.) See Clark, supra note 177, at 461 ("[W]hile a usefulrule may perhaps be framed in terms of notice, I think the Federal Rulesfollow a wiser course of stating a still more general and, if youplease, more legal requirement--'a short and plain statement of theclaim showing that the pleader is entitled to relief.'"(citation and footnote omitted)).

(278.) See infra notes 310-13 and accompanying text (arguing thatnotice-giving is one purpose of pleadings and that this Article'sproposed pleading standard serves that purpose).

(279.) See FED. R. CIV. P. Form 11, [paragraph] 2 ("On<Date>, at <Place>, the defendant negligently drove a motorvehicle against the plaintiff.").

(280.) See FED. R. CIV. P. Form 18 [paragraph][paragraph], 2-3.

(281.) See Swierkiewicz Amended Complaint, supra note 29,[paragraph] 37 ("Plaintiff's age and national origin weremotivating factors in [the defendant's] decision to terminate hisemployment."); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506,514 (2002) ("Petitioner alleged that he had been terminated onaccount of his national origin in violation of Title VII and on accountof his age in violation of the ADEA.").

(282.) In a product liability case, for example, this distinctionsuggests that a complaint is not deficient if it alleges in conclusoryterms that an injury-causing product was "defective." Assumingthat the complaint identifies the event by which the product caused theinjury (e.g., an accident involving the product), the fact that theproduct was defective is merely a characteristic of something that wasinvolved in that alleged event.

(283.) Accordingly, Twombly and Iqbal's insistence on"factual" allegations, see supra note 140, should not be readto impose what was traditionally known as "fact pleading" or"code pleading." See Bell Atl. Corp. v. Twombly, 550 U.S. 544,574 (2007) (Stevens, J., dissenting) (describing how "the [1848]Field Code and its progeny required a plaintiff to plead'facts' rather than 'conclusions'"). Form 11,for example, would fail under a traditional fact-pleading regime becauseit does not provide facts to support the allegation that the defendantwas indeed driving negligently. Id. at 576 (describing how the earlierversion of Form 11 (what was then Form 9) illustrated a break from factpleading). But Form 11 clearly provides some "facts." Italleges that the defendant drove a vehicle against the plaintiff at aparticular time and place. By providing this real-world transactionalnarrative, Form 11 thus provides sufficient "factual"allegations that it must be accepted as true under Twombly and Iqbal,even though one aspect of the collision (that the defendant was driving"negligently") is described with what "would have beencalled a 'conclusion of law' under the code pleading ofold." Id.

(284.) This approach is reflected in Rule 9(b)'s command that"[m]alice, intent, knowledge, and other conditions of aperson's mind may be alleged generally." FED. R. CIV. P. 9(b).Yet it also explains why the mere ability to allege intent or state ofmind "generally" does not mean that every such allegationpasses muster. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1954 (2009)("Rule 9 merely excuses a party from pleading discriminatory intentunder an elevated pleading standard. It does not give him license toevade the less rigid--though still operative--strictures of Rule8."). The allegation must still be sufficiently tethered to anadequately identified transaction in order to be accepted as true at thepleadings phase. See id. ("Rule 8 does not empower respondent toplead the bare elements of his cause of action, affix the label'general allegation,' and expect his complaint to survive amotion to dismiss.").

(285.) Swierkiewicz, 534 U.S. at 514.

(286.) This line between an event's core content and itsqualities or characteristics may not be crystal clear in all cases, butthe distinction is not an arbitrary or uncommon one. Indeed, it isfundamental to basic preclusion principles. Res judicata typically barsany future lawsuit that is based on the same events or transactions,irrespective of how those transactions are characterized or what legaltheory is used to justify recovery. See, e.g., Kremer v. Chem. Constr.Corp., 456 U.S. 461, 481 n.22 (1982) ("Res judicata has recentlybeen taken to bar claims arising from the same transaction even ifbrought under different statutes."); 1 RESTATEMENT (SECOND) OFJUDGMENTS [section] 24(1) (1982) ("[T]he claim extinguishedincludes all rights.., with respect to all or any part of thetransaction, or series of connected transactions, out of which theaction arose."). This rule reflects the difference between the corecontent of an event and its qualities or characteristics. If theplaintiff in Form 11 loses his case when he proceeds on a negligencetheory, preclusion would bar him from filing a second lawsuit based onan intentional tort theory. If Swierkiewicz loses his case when heproceeds on a theory of age and national-origin-based discrimination,preclusion would bar him from filing a second lawsuit based on a theorythat he was fired in retaliation for protected activity under Title VII.See, e.g., Manego v. Orleans Bd. of Trade, 773 F.2d 1, 5, 7 (1st Cir.1985) (applying a "'transactional' approach to claimpreclusion" and holding that res judicata barred an antitrust claimthat arose out of the same facts as an earlier claim alleging violationsof federal civil rights laws).

(287.) This recognition explains why the Court reached differentresults in Iqbal and Swierkiewicz, even though both involved seemingly"conclusory" allegations of discriminatory motive. Iqbal didnot conclude that allegations of invidious motive are inherentlyconclusory unless other allegations in the complaint support theallegation. Rather, Iqbal found the whole of paragraph ninety-six of thecomplaint (which contained the allegation of invidious motive) to beconclusory. The problem with the Iqbal complaint, as explained above,was uncertainty about Ashcroft and Mueller's individual involvementin a willful and malicious agreement to subject Iqbal to harshconditions of confinement. See supra notes 245-55 and accompanying text.The Swierkiewicz complaint, by contrast, provided a clear transactionalnarrative: the plaintiff worked for the defendant, the plaintiff wasfired by the defendant, and the plaintiff's age and national originwere motivating factors in his termination. The fact that respondeatsuperior governs in employment-discrimination claims like Swierkiewicz(unlike the Bivens claim at issue in Iqbal) means that liability doesnot hinge on the conduct of any one particular individual. See supranote 248 and accompanying text.

(288.) See FED. R. CIV. P. Form 11, [paragraph] 2.

(289.) Swierkiewicz Amended Complaint, supra note 29,[paragraph][paragraph] 19, 31, 33.

(290.) See, e.g., Fowler v. UPMC Shadyside, 578 F.3d 203, 211-12(3d Cir. 2009) (reversing lower court's dismissal despite the Iqbaldecision and even though "Fowler's complaint is not as richwith detail as some might prefer"); id. at 213 ("Fowler is notrequired, at this early pleading stage, to go into particulars about thelife activity affected by her alleged disability or detail the nature ofher substantial limitations. Her complaint identifies an impairment, ofwhich UPMC allegedly was aware and alleges that such impairmentconstitutes a disability under the Rehabilitation Act.").

(291.) With respect to Form 11, it should also be noted that theForms provide what "suffice[s]" under the Federal Rules, notwhat is necessary under the Federal Rules. FED. R. CIV. P. 84.

(292.) FED. R. CIV. P. Form 18, [paragraph] 3. Form 18 suggeststhat a complaint in a product liability case should not have to identifywith precision each step in a product's chain of distribution. Justas it is sufficient to allege that a patent infringement defendant hasbeen "making, selling, and using electric motors that embody thepatented invention," id., it should likewise be sufficient toallege that a product liability defendant made or sold the product inquestion.

(293.) This may reflect the entirely sensible notion that theinformation required to adequately allege a particular occurrence canvary depending on whether that information is likely to be in theplaintiff's possession. See supra note 117. A plaintiff can beexpected to know at the time of filing when and where she was struck byan automobile (Form 11), but ought not be expected to know precisedetails about a defendant's internal production or distributionpractices (Form 18).

(294.) FED. R. CIV. P. Form 17, [paragraph] 3.

(295.) FED. R. CIV. P. 9(b).

(296.) Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007).

(297.) ABC Arbitrage Plaintiffs Group v. Tchuruk, 291 F.3d 336, 350(5th Cir. 2002).

(298.) See supra note 243-44 and accompanying text.

(299.) See supra Part III.C. As described above, this uncertaintypermitted lower courts to dismiss complaints at a remarkably high rateeven before Twombly. See supra note 180.

(300.) 578 F.3d 203 (3d Cir. 2009). Ironically, this is the samedecision that read Twombly and Iqbal as overruling Swierkiewicz. Seesupra note 167 and accompanying text.

(301.) Fowler, 578 F.3d at 213; see also id. at 214 ("As wehave stated before, standards of pleading are not the same as standardsof proof.").

(302.) Id. at 212 (emphasis added).

(303.) Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555(2007)).

(304.) Id.

(305.) 578 F.3d 574 (7th Cir. 2009).

(306.) Id. at 582.

(307.) Id. (emphasis added). The Second Circuit's en bancdecision in Arar v. Ashcroft also seems to reflect this approach:

 Arar alleges that "Defendants"--undifferentiated--"denied Mr. Arar effective access to consular assistance, the courts, his lawyers, and family members" in order to effectuate his removal to Syria. But he fails to specify any culpable action taken by any single defendant, and does not allege the "meeting of the minds" that a plausible conspiracy claim requires. He alleges (in passive voice) that his requests to make phone calls "were ignored," and that "he was told" that he was not entitled to a lawyer, but he fails to link these denials to any defendant, named or unnamed.

585 F.3d 559, 569 (2d Cir. 2009) (en banc). The Arar dissenters,however, disputed the majority's characterization of Arar'scomplaint as failing to identify culpable action taken by particulardefendants. See id. at 616 (Parker, J., dissenting) ("[Arar] alsoalleges ... that the defendants were personally involved in hismistreatment both in the United States and abroad."); id. at 594(Sack, J., dissenting) ("[T]he facts of Arar's mistreatment... were pleaded meticulously and in copious detail. The assertion ofrelevant places, times, and events--and names when known--is lengthy andspecific.").

(308.) It is likely that further refinement of the federal pleadingstandard cannot meaningfully occur in the abstract, but must rather bedone in the context of particular kinds of acts or events and particularclaims. Cf. Seiner, supra note 10, at 1041-53 (proposing what complaintsin employment discrimination cases ought to contain). Developing suchstandards on a claim-specific basis might create some tension with theidea that the Federal Rules are "transsubstantive." Seegenerally Burbank, supra note 10 (criticizing "transsubstantivityrhetoric" and arguing that "the foundational assumption [of]transsubstantive rules" limits courts' flexibility in applyingthe Federal Rules in particular substantive contexts). But even if onecontinues to insist on a transsubstantive pleading standard, any suchstandard must ultimately be applied to specific cases and specificclaims. What is required to state a claim will naturally depend, at thevery least, on what the elements of that claim are. Such an approachwould not render the pleading standard fundamentallynon-transsubstantive, any more so than the Federal Rules' numerousform complaints undermine the idea of transsubstantivity.

(309.) See supra Part III.B. Not all courts have heeded thisobligation. One example is Hensley Manufacturing v. ProPride, Inc., 579F.3d 603 (6th Cir. 2009), which upheld the dismissal of a trademarkinfringement action because "the complaint does not allege factssufficient to show that ProPride's use of the 'Hensley'name creates a likelihood of confusion as to the source of itsproducts." Id. at 610. This reasoning seems in conflict with Form18, which permits a patent infringement complaint that alleges nothingmore than that the defendant's product "embod[ies] thepatented invention." See supra note 225 and accompanying text. Anexample from the product liability realm is Frey v. NovartisPharmaceuticals Corp., 642 F. Supp. 2d 787 (S.D. Ohio 2009), whichrefused to credit plaintiffs' allegation of a design defect because"[t]hey have not alleged any facts that would permit the Court toconclude that there was a defect in the design or formulation ofTrileptal." Id. at 795. This reasoning appears to rest on the sortof evidentiary approach to pleading criticized above. See supra PartIV.A.

(310.) Professor Richard Marcus, for example, describes the threepurposes of pleading as (1) "to assure the defendant of notice ofthe basis for the suit"; (2) to "set the parameters for theensuing litigation of the case"; and (3) "disposition on themerits," although for "only a small percentage of cases."Richard Marcus, The Puzzling Persistence of Pleading Practice, 76 TEX.L. REV. 1749, 1755-56 (1998). Professor Benjamin Spencer describespleadings as serving an "instigation function," "framingfunction," and "filtering function." Spencer, supra note7, at 490. But cf. Christopher M. Fairman, Heightened Pleading, 81 TEX.L. REV. 551, 554-57 (2002) (arguing that common law and code pleadingsystems served a number of functions, but under the Federal Rules the"only function" of pleadings is to provide notice).

(311.) One could even imagine a system that has no meaningfulscrutiny at all at the pleadings phase. It could allow a plaintiff tobegin a lawsuit merely by notifying a defendant "I'm suingyou," and then rely on other pretrial processes to perform thenotice-giving, process-facilitating, and merits-screening functions.Such a system would not be fundamentally irrational, but itsdesirability would depend on how that post-pleading process isstructured and implemented.

(312.) See supra notes 177-80 and accompanying text.

(313.) To determine whether this quantum of notice is optimal wouldrequire considering more than just the notice function. Arguments basedon notice alone can be quite slippery. One might even argue that thenotice function justifies precisely the kind of strict pleading standardthat many attribute to Twombly and Iqbal. The statement that a complaintmust "give the defendant fair notice of what the plaintiff'sclaim is and the grounds upon which it rests," Conley v. Gibson,355 U.S. 41, 47 (1957) (emphasis added), is not implausibly read asrequiring the complaint to detail what evidentiary support the plaintiffhas for the key allegations. Cf. Bone, supra note 10, at 900-09 (arguingthat Twombly's plausibility standard might be justified under a"process-based theory of fairness as reason-giving" that"treats notice as a matter of political morality not contingent onother elements of the system"). Conversely, even a complaint thatwould fail under this Article's more lenient standard (for example,one that alleges only that "the defendant violated theplaintiffs' rights under Title VII of the 1964 Civil RightsAct") still provides some notice, particularly given thedefendant's ability to glean more information from the plaintiffthrough the disclosure and discovery process. See, e.g., FED. R. CIV. P.26(a) (initial disclosure requirements); FED. R. CIV. P. 26(b)(1)(allowing discovery into "any nonprivileged matter that is relevantto any party's claim"). Ultimately, then, other purposes ofpleading--such as process-facilitation and merits-screening--may do morework in justifying any particular pleading standard as a policy matter.

(314.) See FED. R. CIV. P. 20.

(315.) See FED. R. Cry. P. 13(a).

(316.) See FED. R. CIV. P. 13(g).

(317.) See FED. R. CIV. P. 14(a)(2)(D).

(318.) See FED. R. CIV. P. 15(c)(1).

(319.) See, e.g., WRIGHT & MILLER, supra note 3, [section] 1202(arguing that pleadings should "provide some guidance in asubsequent proceeding as to what was decided for purposes of resjudicata and collateral estoppel"); Spencer, supra note 7, at 490(arguing that pleadings should "identify the nature and contours ofthe dispute for purposes of ... res judicata"). As Charles Clarkwrote, the complaint ought to "sufficiently differentiate thesituation of fact which is being litigated from all other situations toallow of the application of the doctrine of res judicata, whereby finaladjudication of this particular case will end the controversyforever." Clark, supra note 177, at 456-57.

(320.) See supra note 286.

(321.) FED. R. CIV. P. 12(b)(6).

(322.) 42 U.S.C. [section] 2000e-2(a)(1) (2006).

(323.) This is not to say that the transactional approach proposedhere will perfectly weed out unsustainable legal theories at thepleadings phase. If the Form 11 plaintiff were relying on a legallyincorrect view of what constitutes "negligent[]" driving (forexample, that wearing a green shirt constituted negligence per se), thatwould not be revealed until the disclosure/discovery phase. See FED. R.CIV. P. Form 11 (deeming it sufficient to allege "On <Date>,at <Place>, the defendant negligently drove a motor vehicleagainst the plaintiff").

(324.) See supra note 313; cf. Clark, supra note 177("[R]efer[ring] to the notice function of pleadings.... is a soundapproach so far as it goes; but.... [i]t cannot be defined so literallyas to mean all the details of the parties' claims, or else the ruleis no advance.").

(325.) See, e.g., Lawrence B. Solum, Procedural Justice, 78 S. CAL.L. REV. 181, 228 (2004) (arguing that "the system of pleadingshould not unduly interfere with decisions on the merits").

(326.) See supra notes 116-17 and accompanying text; infra PartV.B.

(327.) See, e.g., FED. R. CIV. P. 16(c)(2) (authorizing the courtto, among other things, "take appropriate action on ... formulatingand simplifying the issues ... [and] identifying witnesses anddocuments"); FED. R. CIV. P. 26(a)(1) (requiring parties to provide"the name and, if known, the address and telephone number of eachindividual likely to have discoverable information--along with thesubjects of that information--that the disclosing party may use tosupport its claims or defenses" and "a copy--or a descriptionby category and location--of all documents, electronically storedinformation, and tangible things that the disclosing party has in itspossession, custody, or control and may use to support its claims ordefenses"); FED. R. CIV. P. 26(b)(1) (allowing discovery into"any nonprivileged matter that is relevant to any party'sclaim"); FED. R. CIV. P. 26(f)(2) (requiring parties to"consider the nature and basis of their claims and defenses"when conferring and developing a proposed discovery plan).

(328.) See supra notes 204-07 and accompanying text. Again, this isnot an indictment of all pleading standards that require additionaldetails or supporting evidence. Heightened pleading standards that aredirected at discrete issues (such as the PSLRA, see supra note 35) canbe sensibly applied; but fatal conceptual problems arise if one seeks toapply such a standard to every allegation in a complaint. See supra note207.

(329.) See supra notes 113-22 and accompanying text.

(330.) As Professor Robert Bone framed the issue, a lenientpleading rule "reduces the risk of an erroneous denial of relief--afalse negative--by making it easier for meritorious cases to be brought.But it also increases the risk of an erroneous grant of relief--a falsepositive--by making it easier for frivolous suits to be filed."Robert G. Bone, The Process of Making Process: Court Rulemaking,Democratic Legitimacy, and Procedural Efficacy, 87 GEO. L.J. 887, 911(1999) (citation omitted). A strict pleading rule, on the other hand,"reduces the risk of false positives by increasing the filingburden for frivolous suits, but it also increases the risk of falsenegatives by making filing harder in meritorious suits." Id.

(331.) Although it is beyond the scope of this Article, stricterpleading requirements might also be applied to defendant's filings,such as answers or notices of removal. See, e.g., Hoffman, supra note10, at 1246 (recognizing "the possibility that judicialinterpretations of pleading and removal could bear relevance to oneanother"). But see Romantine v. CH2M Hill Eng'r, Inc., No.09-973, 2009 WL 3417469, at *1 (W.D. Pa. Oct. 23, 2009) (rejectingplaintiff's argument that the language of Twombly "requiresthat a defendant must set forth more than labels and conclusions in itslist of defenses").

(332.) See supra notes 116-17 & 122 and accompanying text.

(333.) See id.

(334.) It is particularly troubling that such dismissals wouldoccur before the defendant has been required to take a factual positionon whether the plaintiff's allegations are true. See Bell Atl.Corp. v. Twombly, 550 U.S. 544, 572 (2007) (Stevens, J., dissenting)(criticizing the majority for dismissing the Twombly complaint"without so much as requiring [the defendants] to file an answerdenying that they entered into any agreement"). This concernimplicates more than just abstract fair play. A defendant who merelychallenges the adequacy of a plaintiff's complaint via Rule12(b)(6) makes neither "factual contentions" nor "denialsof factual contentions" regarding the plaintiff's claim and,therefore, is not subject to Rule 11's obligations (and potentialsanctions) regarding such factual issues. See FED. R. CIV. P. 11(b)(3),(4).

(335.) See Bone, supra note 10, at 876 ("[S]creening moreaggressively at the front door by demanding more from the complaint isjust one approach, with its own costs and benefits, and should beevaluated relative to other alternatives.").

(336.) See supra note 123 and accompanying text.

(337.) See supra note 124 (quoting FED. R. CIV. P. 16(c)(2)(F) andFED. R. CIV. P. 26(b)(2)).

(338.) See supra note 125 and accompanying text.

(339.) See WRIGHT & MILLER, supra note 3, [section] 3914.23;see also Transcript of Oral Argument at 50, Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (No. 07-1015) [hereinafter Iqbal Oral Argument],available at http://supremecourtus.gov/oral_arguments/argument_transcripts/07-1015.pdf (comment of Justice Alito noting thatdiscovery-management orders are "interlocutory discretionarydecision[s] by the trial judge").

(340.) Admittedly, a judge who is motivated principally by a desireto reduce his or her workload (rather than by an assessment of thelikely merits of a particular claim) might have a different preferenceordering. Such a judge would be inclined to dismiss a case outright but,failing that, would be unlikely to expend time and energy managingdiscovery.

(341.) See generally WRIGHT & MILLER, supra note 3, [section]3914.1.

(342.) See Iqbal Oral Argument, supra note 339, at 61 (comment ofJustice Breyer noting that the application of pleading requirements"and every other legal question" depend on judges faithfullyimplementing the relevant standard).

(343.) See, e.g., FED. R. CIV. P. 16(c) (authorizing the court toissue orders regarding numerous pretrial matters including"controlling and scheduling discovery"); FED. R. CIV. P. 26(f)(obligating the parties to confer and develop a plan that sets forth theparties' views on how discovery should proceed before the initialscheduling conference with the court).

(344.) FED. R. CIV. P. 12(d).

(345.) Id.; see also FED. R. CIV. P. 56(f)(2) ("If a partyopposing the motion shows by affidavit that, for specified reasons, itcannot present facts essential to justify its opposition, the court may... order a continuance to enable affidavits to be obtained, depositionsto be taken, or other discovery to be undertaken."). Rule 12(d)currently gives judges discretion to refuse to consider matters outsidethe pleadings; if a judge "exclude[s]" such matters, then heor she is no longer obligated to treat the motion "as one forsummary judgment under Rule 56." FED. R. CIV. P. 12(d). Rule 12(d)might be a more robust tool for mitigating discovery costs if appellatecourts developed principles to cabin this discretion and thereby requiretrial judges in more cases to implement what is essentially a form ofphased discovery in response to a Rule 12(d) motion.

(346.) In this sense, the Rule 12(d) method parallels an idea thathas been suggested for dealing with the Catch-22 that plaintiffs faceunder the heightened-pleading reading of Twombly. Some courts haveconsidered whether to allow limited discovery before ruling on aTwombly-based 12(b)(6) motion in order to give the plaintiff anopportunity to discover the information that such a pleading standardwould require. See, e.g., In re Graphics Processing Units AntitrustLitig., No. C 06-07417 WHA, 2007 WL 2127577 (N.D. Cal. July 24, 2007);see also Malveaux, supra note 12, at 68 ("[T]he plausibilitypleading standard may require that parties take some limited,preliminary discovery at the pleading stage....").

(347.) See Hoffman, supra note 10, at 1222-23 (noting the frequencywith which Twombly was cited during its first nine months and concludingthat "it is not altogether inappropriate to assume defendants arenow more regularly urging judges to intercept complaints at the pleadingstage"); Spencer, supra note 10, at 11 (arguing that under Twombly"defendants will be emboldened to challenge the sufficiency ofclaims").

(348.) See infra app. tbls. 1 & 2.

(349.) See supra notes 204-07 and accompanying text.

(350.) See, e.g., Presidio Group, LLC v. GMAC Mortg., LLC, No.08-05298 RBL, 2008 WL 2595675 (W.D. Wash. June 27, 2008) (dismissingplaintiffs 465-page complaint as violating Rule 8(a) and noting that"'[b]revity is the soul of wit.' [It] is also the soul ofa pleading" (quoting WILLIAM SHAKESPEARE, HAMLET act 2, sc. 2)).

(351.) Consider the complaint in Twombly. The plaintiffs allegedthat an agreement to restrain competition existed, but they alsoincluded a separate paragraph stating:

 Richard Notebaert[,] ... who currently serves as the Chief Executive Officer of Defendant Qwest, was quoted in a Chicago Tribune article as saying it would be fundamentally wrong to compete in the SBC/Ameritech territory, adding "it might be a good way to turn a quick dollar but that doesn't make it right."

Consolidated Amended Class Action Complaint, supra note 256,[paragraph] 42. The Twombly majority, of course, concluded that thisallegation was not sufficient factual enhancement. Bell Atl. Corp. v.Twombly, 550 U.S. 544, 568-69 & n.13 (2007). But assume for themoment that this sort of allegation, perhaps in combination with other"enhanc[ing]" snippets, might be enough to satisfy theconventional reading of Twombly/Iqbal. What is accomplished by requiringthe complaint to contain such information? Not much. The operative factfor a [section] 1 Sherman Antitrust Act claim is whether an agreement torestrain competition existed, not whether a defendant's CEO made acomment like this to a newspaper.

(352.) See supra note 327.

(353.) See FED. R. CIV. P. 8(b)(1)(B). Using the example supra note351, it is hard to see what is gained by requiring the defendant toadmit or deny whether its CEO "was quoted in a Chicago Tribunearticle" as saying what the plaintiff alleges. Even if thedefendant were to admit such an allegation, that would only establishwhat the article said, not what the CEO actually said or, moreimportantly, whether the CEO had in fact engaged in an illegal agreementwith fellow telecommunications providers.

(354.) Even if courts adopt this Article's reading of Twomblyand Iqbal (which would preserve the fairly lenient pre-Twombly pleadingregime, albeit in a new doctrinal context) the argument that pleadingstandards must be tightened in order to mitigate discovery costs maysimply shift to the federal rulemaking process, see 28 U.S.C. [section]2072 (2006), or to Congress.

(355.) Reprinted with the permission of LexisNexis. Sincere thanksto Patricia Rodriguez at LexisNexis for compiling this information.

Adam N. Steinman, Professor of Law, University of CincinnatiCollege of Law; effective July 2010, Profesor of Law and Michael J.Zimmer Fellow, Seton Hall University School of Law. Thanks to BruceBoyden, Aaron Bruhl, Steve Burbank, Jenny Carroll, Kevin Clermont, ScottDodson, Robin Effron, Ed Hartnett, Lonny Hoffman, Tom Rowe, SuzannaSherry, Ben Spencer, Charlie Sullivan, Jay Tidmarsh, and HowardWasserman for their helpful comments and suggestions. In addition, thisArticle has benefitted from comments received during presentations atBoston College Law School, Ohio State University Moritz College of Law,Seton Hall University School of Law, University of Cincinnati College ofLaw, University of Houston Law Center, University of San Diego School ofLaw, and the Association of American Law Schools 2010 Annual Meeting.Thanks also to Darren Ford and James Patrick, who provided excellentresearch assistance, and to the editors and staff of the Stanford LawReview for their exemplary work on this Article. The research for thisArticle was supported by a grant from the Harold C. Schott Foundation.

Table 1: Most Frequently Cited by Federal Courts and Tribunals Federal CitingRank Case References1 Anderson v. Liberty Lobby, Inc., 477 126,661 U.S. 242 (1986)2 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 121,4563 Matsush*ta Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) 59,2384 Conley v. Gibson, 355 U.S. 41 (1957) 46,8825 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 37,1376 Strickland v. Washington, 466 U.S. 668 (1984) 36,9807 Bell Atl. Corp. v Twombly, 550 U.S. 544 (2007) 23,8728 Haines v. Kerner, 404 U.S. 519 (1972) 23,7359 Monell v. Dep't of Soc. Servs., 436 U.S. 23,238 658 (1978)10 Thomas v. Arn, 474 U.S. 140 (1985) 22,16811 United States v. Booker, 543 U.S. 220 (2005) 21,70012 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) 20,64713 Estelle v. Gamble, 429 U.S. 97 (1976) 18,28814 Adickes v. S.H. Kress & Co., 398 U.S. 17,705 144 (1970)15 Neitzke v. Williams, 490 U.S. 319 (1989) 17,59316 Scheuer v. Rhodes, 416 U.S. 232 (1974) 17,26617 Williams v. Taylor, 529 U.S. 362 (2000) 17,11618 Harlow v. Fitzgerald, 457 U.S. 800 (1982) 16,89619 Slack v. McDaniel, 529 U.S. 473 (2000) 16,85020 Richardson v. Perales, 402 U.S. 389 (1971) 16,81821 Jackson v. Virginia, 443 U.S. 307 (1979) 14,82222 Farmer v. Brennan, 511 U.S. 825 (1994) 14,30023 Apprendi v. New Jersey, 530 U.S. 466 (2000) 13,91824 Anders v. California, 386 U.S. 738 (1967) 13,74625 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) 13,59326 United Mine Workers v. Gibbs, 383 U.S. 12,787 715 (1966)27 Hishon v. King & Spalding, 467 U.S. 69 (1984) 12,54428 Coleman v. Thompson, 501 U.S. 722 (1991) 12,41829 Miller-El v. co*ckrell, 537 U.S. 322 (2003) 12,05030 Brady v. Maryland, 373 U.S. 83 (1963) 11,74731 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U. S. 388 (1971) 11,72532 Miranda v. Arizona, 384 U.S. 436 (1966) 11,69733 Chevron U.S.A. Inc. v. NRDC, 467 U.S. 10,930 837 (1984)34 Foman v. Davis, 371 U.S. 178 (1962) 10,62435 Int'l Shoe Co. v. Washington, 326 U.S. 10,249 310 (1945)36 Hensley v. Eckerhart, 461 U.S. 424 (1983) 10,05037 Heck v. Humphrey, 512 U.S. 477 (1994) 974838 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 9738 502 (1993)39 United States v. Diebold, Inc., 369 U.S. 9333 654 (1962)40 Anderson v. Creighton, 483 U.S. 635 (1987) 907041 Blakely v. Washington, 542 U.S. 296 (2004) 901742 Terry v. Ohio, 392 U.S. 1 (1968) 895643 Wolff v. McDonnell, 418 U.S. 539 (1974) 888044 Bd. of Regents v. Roth, 408 U.S. 564 (1972) 867445 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) 840246 Murray v. Carrier, 477 U.S. 478 (1986) 837447 Saucier v. Katz, 533 U.S. 194 (2001) 833848 Estelle v. McGuire, 502 U.S. 62 (1991) 830549 Welch v. Helvering, 290 U.S. 111 (1933) 811750 Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941) 808151 Rose v. Lundy, 455 U.S. 509 (1982) 802852 United States v. U.S. Gypsum Co., 333 U.S. 7916 364 (1948)53 West v. Atkins, 487 U.S. 42 (1988) 774254 Daubert v. Merrell Dow Pharms., 509 U.S. 7735 579 (1993)55 Denton v. Hernandez, 504 U.S. 25 (1992) 770956 Graham v. Connor, 490 U.S. 386 (1989) 755757 Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938) 752758 Lujan v. Defenders of Wildlife, 504 U.S. 7327 555 (1992)59 Lindh v. Murphy, 521 U.S. 320 (1997) 728460 Sandin v. Conner, 515 U.S. 472 (1995) 726561 Parratt v. Taylor, 451 U.S. 527 (1981) 725762 Younger v. Harris, 401 U.S. 37 (1971) 710963 Preiser v. Rodriguez, 411 U.S. 475 (1973) 704864 Burger King Corp. v. Rudzewicz, 471 U.S. 7030 462 (1985)65 Anderson v. Bessemer City, 470 U.S. 564 (1985) 701666 Will v. Mich. Dep't of State Police, 491 U.S. 6979 58 (1989)67 Glasser v. United States, 315 U.S. 60 (1942) 695568 Daniels v. Williams, 474 U.S. 327 (1986) 695269 United States v. Olano, 507 U.S. 725 (1993) 694370 Kentucky v. Graham, 473 U.S. 159 (1985) 680071 Picard v. Connor, 404 U.S. 270 (1971) 679372 Bell v. Wolfish, 441 U.S. 520 (1979) 676273 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) 669974 Almendarez-Torres v. United States, 523 U.S. 224 (1998) 665275 Swierkiewicz v. Sorema N.A., 534 U.S. 6629 506 (2002)76 Ashcroft v. Igbal, 129 S. C. 1937 (2009) 662077 Universal Camera Corp. v. NLRB, 340 U.S. 6358 474 (1951)78 Harris v. Forklift Sys., 510 U.S. 17 (1993) 624879 Illinois v. Gates, 462 U.S. 213 (1983) 623480 Wainwright v. Sykes, 433 U.S. 72 (1977) 616081 United States v. Frady, 456 U.S. 152 (1982) 613282 Brecht v. Abrahamson, 507 U.S. 619 (1993) 608983 Wilson v. Seiter, 501 U.S. 294 (1991) 602484 City of Canton v. Harris, 489 U.S. 378 (1989) 599685 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) 588086 Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) 584987 Warth v. Seldin, 422 U.S. 490 (1975) 583888 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) 579889 Link v. Wabash R. Co., 370 U.S. 626 (1962) 574890 Mathews v. Eldridge, 424 U.S. 319 (1976) 573491 Hudson v. McMillian, 503 U.S. 1 (1992) 561292 First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253 (1968) 558893 O'Sullivan v. Boerckel, 526 U.S. 838 (1999) 555694 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) 553995 Schlup v. Delo, 513 U.S. 298 (1995) 545496 Chapman v. California, 386 U.S. 18 (1967) 541697 Hill v. Lockhart, 474 U.S. 52 (1985) 540998 United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) 532899 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) 5306100 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 1977 5294Table 2: Fastest Rates of Citations By Federal Courts and Tribunals Fed. Citation RateRank Case per month1 Bell Ate Corp. v. Twombly, 550 U.S. 544 (2007) 7692 Anderson v. Liberty Lobby, Inc., 477 U.S. 757 242 (1986)3 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 7374 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) 5125 Thomas v. Am, 474 U.S. 140 (1985) 4486 Matsush*ta Elec. Indus. Co. v. Zenith Radio 385 Corp., 475 U.S. 574 (1986)7 Strickland v. Washington, 466 U.S. 668 (1984) 3278 Haines v. Kerner, 404 U.S. 519 (1972) 2729 Williams v. Taylor, 529 U.S. 362 (2000) 26710 Slack v. McDaniel, 529 U.S. 473 2000 229