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Civil Procedure in the Roberts Court


Perhaps the most controversial decisions thus far from the US Supreme Court under ChiefJustice John Roberts have been in the usually mundane area of civil procedure. Although the Court’s procedural decisions in class action cases have attracted the most popular attention, it is a pair of pleading decisions two years apart, Bell Atlantic Corp. v. Twombly[1] and Ashcroft v. Iqbal,[2] that have raised most of the ire of scholars. In these decisions, the Court made a jarring shift in its jurisprudence on what plaintiffs need to plead in their complaints in order to keep their suits from being dismissed at the very outset of litigation. These decisions have been described as “the most significant ... in a decade for day-to-day litigation in the federal courts"[3] Indeed, the decisions are on pace to become the most-cited Supreme Court cases of all time.[4] And the scholarly criticism of the two cases has been withering.[5]

Commentators believed the decisions would spark a revolution in federal court litigation. They have criticized the decisions as gifts to the business community that were delivered by judicial fiat. According to commentators, the Court ignored, distinguished, or disavowed long-standing precedents in order to find new meaning in the text of a Federal Rule of Civil Procedure—Rule 8(a) —that reads today exactly as it has since 1938. As far as these commentators are concerned, these decisions were nothing short of “conservative judicial activism.”[6]

Although I agree with some of this criticism, I think some of it is overstated. First, Twombly and Iqbal have not been nearly as revolutionary as commentators predicted; as a practical matter, lower federal courts long ago elevated pleading standards in the face of the exponential increases in discovery costs faced by corporate defendants. Second, charges of “judicial activism” in this context have a bit less salience than they do in the more typical contexts in which they are made—contexts in which the Court has usurped the authority of another branch of government—because the text the Court reinterpreted in these decisions was a Federal Rule of Civil Procedure, something that the Court promulgated and can change at any time. Finally, I think the Court’s motives in Twombly and Iqbal—to recalibrate plaintiffs’ discovery rights in light of the exponential increases in discovery costs that have developed in the years since the Federal Rules were first promulgated in 1938—were pure, even if its methods were not.

  • [1] 550 U.S. 544 (2007).
  • [2] 556 U.S. 662 (2009).
  • [3] Adam Liptak, 9/H Case Could Bring Broad Shift on Civil Suits, N.Y. Times, July 21, 2009, at A10.
  • [4] See Kevin M. Clermont, Three Myths About Twombly-Iqbal, 45 Wake Forest L. Rev. 1337,1337 n.4 (2010) (“Twombly has managed to induce an absolutely extraordinary 29,704 cases to citeit in its first thirty-seven months, as measured by a Westlaw KeyCite run on July 2, 2010. It is on-trackto become the most-cited Supreme Court case of all time, unless surpassed by Iqbal itself, which has10,263 judicial citations in thirteen months.").
  • [5] See Lisa Eichhorn, A Sense of Disentitlement: Frame-Shifting and Metaphor in Ashcroft v. Iqbal,62 Fla. L. Rev. 951, 959 (2010) (“Academic criticism of the Twombly decision was speedy andabundant.").
  • [6] Wayne Parsons, The Conservative Judicial Activism Chronicles, InjuryBoard BlogNetwork(July 28, 2009), available at (last accessedFebruary 12, 2016); see also Goutam U. Jois, Pearson, Iqbal, and Procedural Judicial Activism 37 Fla.St. U. L. Rev. 901 (2010); Marc I. Steinberg & Diego E. Gomez-Cornejo, Blurring the Lines between Pleading Doctrines: The Enhanced Rule 8(a)(2) Plausibility Pleading Standard Converges with theHeightened Fraud Pleading Standards under Rule 9(b) and the PSLRA, 30 Rev. Litig. 1, 46-50 (2010);Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 Am. U. L.Rev. 553, 555 (2010) (noting that many have criticized Iqbal as “judicial activism”).
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