Alexander A. Reinert, Assistant Professor of Law, Benjamin N. Cardozo School of Law, has published a meticulously researched article that examines effects of the heightened pleading requirements under recent United States Supreme Court jurisprudence.
Entitled “The Costs of Heightened Pleading”, the article appears in the Winter 2011 issue of the Indiana Law Journal ( 86 Ind. L.J. 119).
Professor Reinert observes that Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) have created a pleading standard that “heightens attention to ‘conclusory’ pleading, treats state of mind allegations in a manner at odds with prior precedent, and encourages lower courts to apply their own intuitions to decide whether a plaintiff’s legal claims and allegations are sufficient to proceed to discovery.”
Have these developments aided judicial economy and the cause of justice by eliminating a measurable number of meritless claims? Through a carefully designed research project, this work parses ”empirical data to question the widespread assumptions about the costs and benefits of heightened pleading.” This work illustrates a gap in the supposed link between the heightened pleading standards and filtering of meritorious claims.
Nor does the heightened pleading standard come without costs. In this regard, the author suggests “a heightened pleading standard may function in the same way that randomized dismissal would, amounting to a radical departure from pleading standards that few would find satisfactory.”
See, Reinert, Alex A., The Costs of Heightened Pleading (August 16, 2010). Indiana Law Journal, Vol. 86, 2011; Cardozo Legal Studies Research Paper No. 307.
Available at SSRN: http://ssrn.com/abstract=1666770
And the point is? That if it is more difficult to satisfy a threshold requirement some “meritorious” cases that “ought” to proceed will be filtered out? If they ARE meritorious and counsel is reasonably competent then the Twombly/Iqbal threshold can be met. Posner’s recent opinion in In Re Text Messaging Litigation seems to demonstrate that competent lawyers in front of competent judges are able to get the job done and an appropriate case moved beyond the initial pleading stage.
The point is that the notice standard was adequate.
Bare notice pleading, such as that considered sufficient by the Court in Conley v. Gibson more than a half century ago was never “adequate,” unless adequacy is to be determined soley from one side of the case.
Having trained initially as judicial conduct organization staff counsel, where as a practical and political matter it was required that one be able to state their case plainly and clearing in the formal complaint against the judge, I discovered that there is real value for all concerned in more than bare “notice” pleading. It sharpens the case from the onset, and permits meaningful advocacy for and against reasonably fixed contentions.
I submit that if you don’t have enough information to permit you to craft more than a notice complaint, then perhaps you should seriously consider whether a complaint is warranted, at all. In my view (and I represent both plaintiffs and defendants in commercial disputes) litigation should not be treated as some form of game; “tag, you’re it” is not a sound principle for the administration of justice.
So, whether Twombly/Iqbal can be fairly characterized as deviating from the prior standard or not, the standard ennunciated in these cases provides an appropriate threshold. Without being able to read the article desribed in the original post until publication, I am left with the original question unanswered. If the only point being made is: “this is different that before,” the forthcoming article would seem to add little to the debate.
You can read the article on the SSRN site via the link at the end of the post. Your observations are likely those that inspired the heightened standard — but they are anecdotal. The author compiled data to test the hypothesis and found it wanting. You might quarrel with his methodology but he has placed the debate in objective terms. So far I am unaware of any similar effort to support the opposing point of view.