Pleading, for the Future: Conversations After Iqbal

By Lee H. Rosenthal.

One of the themes at this Symposium has been the remarkable volume and intensity of the response to the Supreme Court’s decision in Ashcroft v. Iqbal. Some of the papers presented at this Symposium present the view that Bell Atlantic Corp. v. Twombly, as applied in Iqbal, drastically altered the interpretation and application of the iconic words of Rule 8(a). But that understanding is far from monolithic, in the bench, the bar, or the academy. Some judges, lawyers, and scholars question the extent to which the pleading standards have changed, pointing out that Twombly and Iqbal are but the latest in a series of cases interpreting Rule 8; reminding us that many of the basic premises of Twombly and Iqbal—such as requiring more than a recitation of the elements of the claim and not assuming the truth of conclusory allegations in analyzing a motion to dismiss—have been commonly applied in courts for years; and reminding us that Twombly denied imposing a heightened or fact pleading standard and that Iqbal stated that it was applying the Twombly standard. The common-law process has continued; a body of appellate court cases has emerged interpreting Twombly and Iqbal. And since Iqbal, bills have been introduced in Congress to address the pleading standard in the federal courts.
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