As part of an ongoing project to map U.S. Supreme Court doctrine, Professor Colin Starger has created a mapping video that examines the evolution of civil pleading standards, or the journey from Conley v. Gibson to Twombly/Iqbal. Published by the Federal Courts Law Review, a journal that is peer reviewed by U.S. magistrate judges and law professors, the video was created with Professor Scott Dodson of the UC Hastings College of the Law. The University of Baltimore provided funds for the mapping software that underlies the video.
For more information about Professor Starger, visit his faculty page. Below is a transcript of the video.
“Mapping Supreme Court Doctrine” is a video presentation that accompanies our article on federal civil pleading requirements appearing in the Federal Courts Law Review. We are Professors Scott Dodson and Colin Starger. In this presentation, we will graphically demonstrate the genealogy and evolution of civil pleading standards in the U.S. Supreme Court.
Let’s begin with the basics of the mapping schema we’ll be using. The idea is to plot relationships between Supreme Court opinions on an X-Y axis. The X-axis plots the date of an opinion, while the Y-axis plots the relative liberality of the opinion’s pleading standard: the higher on the Y-axis, the more liberal the pleading standard in that opinion. We’ll also show—via arrows—the citations of one decision to another, with a green arrow representing a positive citation that follows the cited case and a yellow arrow representing one that limits the cited case or calls it into question. Finally, we’ll indicate the results of cases using shapes. Downward-facing triangles represent cases where a claim was found insufficient and dismissed under Rule 12(b)(6). Upward-facing triangles represent cases where the claim was sufficient as a matter of law and thus survived a motion to dismiss.
Before plotting the decisions themselves, let’s start with the backdrop of federal civil pleading and that of course is Rule 8 of the Federal Rules of Civil Procedure. That rule states that a plaintiff’s complaint need only set out a short and plain statement showing that the pleader is entitled to relief.
The seminal case interpreting Rule 8’s language is Conley v. Gibson, decided in 1957. This case interpreted Rule 8 very liberally indeed, which is why it appears near the top of our Y-axis. Conley said Rule 8 merely requires a complaint give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests, and Conley famously stated that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief.
The Court decided two important cases after Conley—Leatherman v. Tarrant County, in 1993, and Swierkiewicz v. Sorema, in 2002. Each case unanimously reaffirmed Conley and disapproved of lower courts attempting to set a stricter pleading standard.
In 2007, however the Court decided Bell Atlantic v. Twombly, which abrogated Conley’s “no set of facts” standard and held that the plaintiff must go beyond mere notice to state a claim for relief that is plausible. Twombly thus also called into question Leatherman and Swierkiewicz, which both relied heavily on Conley. Because Twombly set a stricter pleading standard, we have plotted this case lower on the Y-axis than Conley.
Two years later, in Ashcroft v. Iqbal, the Court confirmed Twombly’s plausibility standard, and it further tightened the pleading standard by directing courts to disregard conclusory allegations. Interestingly, Iqbal did not even cite directly to Conley, Leatherman or Swierkiewicz.
This is the conventional narrative of pleadings standards at the Supreme Court level. The map depicts a relatively unadulterated liberality from Conley to Swierkiewicz suddenly sliding down to a stricter pleading standard imposed by Twombly and Iqbal.
Yet this conventional narrative of the law of federal pleading is actually complicated by Twombly’s progenitors and progeny. As we will show, the general trend remains the same: pleading standards have, at least at the Supreme Court level of doctrine, tightened. But, there is more to this story than just Conley, Twombly and Iqbal.
To begin with, Twombly did not create stricter pleading out of whole cloth. Twombly relied on three other pleadings decisions for support. First, in 1983, the Court decided Associated General Contractors v. California State Council of Carpenters . Although the Court found that the conduct alleged was not unlawful—and therefore the claim was insufficient as a matter of law—the Court opined that if the conduct had been unlawful, then a district court could insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.
In 1986, the Court decided Papasan v. Allain, a case challenging wealth disparities in public education. To state a constitutional claim, the plaintiffs alleged that the disparities deprived schoolchildren of a minimally adequate education. The Court disregarded this allegation because, the Court said, such an allegation without factual support was merely a legal conclusion.
Finally, in 2005, the Court decided Dura Pharmaceuticals v. Broudo, holding that a plaintiff pleading federal securities fraud must allege some factual description of the economic loss and its causal connection. Otherwise, the Court predicted, a plaintiff with a largely groundless claim could force an unjust settlement without a reasonably founded hope that the discovery process would reveal relevant evidence.
Rather than Leatherman or Swierkiewicz, Twombly relied on each of these three cases to justify its doctrinal conclusion. Twombly cited Papasan to disregard the allegation of a conspiracy as merely a legal conclusion. And, citing Associated General and Broudo, Twombly emphasized the need for additional facts before allowing a claim without a reasonably founded hope of evidentiary support to proceed and impose discovery costs or force an unjust settlement.
In addition to these oft-overlooked early cases, there is a blip in the middle, and that’s Erickson. Erickson v. Pardus, decided just a month after Twombly, seemed to apply a more lenient pleading standard to a pro se prisoner suit. And that’s why we’ve plotted it higher up on the Y-axis. But, in that case, the allegations easily satisfied even Twombly’s plausibility standard. And pro se plaintiffs are historically given some leniency in pleading. Further, Iqbal, the case right after Erickson, continued the downward trend in pleading liberality, and it relied heavily on Twombly without even mentioning Erickson. In fact, Erickson has not been cited by any other opinion in our map. Erickson, the map shows, is just a red herring.
The final complication that we introduce in this map is the post-Iqbal cases, which seem to show a bit of genuine uptick in pleading liberality. In Matrixx Initiatives v. Siracusano, a unanimous Court reaffirmed the plausibility-pleading standard of Twombly and Iqbal but nevertheless held that the relatively bare allegations satisfied that standard. And, in Skinner v. Switzer, the Court cited Swierkiewicz in upholding the complaint.
These cases do not retract the Twiqbal standard, but they do offer data points that could be seen as less strict. All told, then, our map shows a more complicated—and perhaps quite unfinished—picture of civil pleading standards as set out by the Supreme Court.
We hope this video presentation and map have been useful. And in the meantime, we look forward to the Court’s next pronouncement.