Content uploaded by Stephen B. Burbank
Author content
All content in this area was uploaded by Stephen B. Burbank on Mar 05, 2014
Content may be subject to copyright.
NELLCO
NELLCO Legal Scholarship Repository
Scholarship at Penn Law University of Pennsylvania Law School
2-21-2009
Pleading and the Dilemmas of “General Rules”
Stephen B. Burbank
sburbank@law.upenn.edu
This Article is brought to you for free and open access by the University of Pennsylvania Law School at NELLCO Legal Scholarship Repository. It has
been accepted for inclusion in Scholarship at Penn Law by an authorized administrator of NELLCO Legal Scholarship Repository. For more
information, please contact tracy.thompson@nellco.org.
Recommended Citation
Burbank, Stephen B., "Pleading and the Dilemmas of “General Rules”" (2009). Scholarship at Penn Law. Paper 266.
http://lsr.nellco.org/upenn_wps/266
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
PLEADING AND THE DILEMMAS OF
“GENERAL RULES”
STEPHEN B. BURBANK∗
Abstract
This article comments on Professor Geoffrey Miller’s article about
pleading under Tellabs and goes on (1) to use Tellabs, Bell Atlantic Corp. v
Twombly, and Iqbal v. Hasty (in which the Court has granted review) to
illustrate the limits of, and costs created by, certain foundational assumptions
and operating principles that are associated with the Rules Enabling Act’s
requirement of “general rules,” and (2) more generally, to illustrate the costs of
the complex procedural system that we have created. Thus, for instance, the
argument that the standards emerging from Twombly should be confined to
antitrust conspiracy cases confronts the foundational assumptions that the
Federal Rules are trans-substantive and that they cannot be amended by judicial
interpretation. Similarly, in Iqbal, the Government presumably denies that it is
calling for the imposition of a heightened fact pleading requirement in cases
involving high government officials entitled to an immunity defense because the
Court seems to have made it impossible for the judiciary openly to impose such
a requirement other than through “The Enabling Act Process.” The Court may,
however, take a different view of the appropriate contextual plausibility
judgment than did the lower court in Iqbal. If so, however, the Court would
thereby confirm the view that Twombly is an invitation to the lower courts to
make ad hoc decisions reflecting buried policy choices. I therefore argue that, if
the Court is persuaded that the changes already made to pleading jurisprudence
are insufficient to accommodate the needs of the immunity defense, it should
forthrightly require fact pleading as a matter of substantive federal common law.
Introduction 101
I. Assessing the Adequacy of Complaints Alleging Scienter
after Tellabs: Two Tests or One? ............................................... 104
II. Foundational Assumptions and Operating Principles ................ 107
III. Pleading and the Dilemmas of “General Rules” ........................ 112
Conclusion ...............................................Error! Bookmark not defined.
INTRODUCTION
Professor Geoffrey Miller’s paper on pleading under the Private
∗ David Berger Professor for the Administration of Justice, University of
Pennsylvania. Steve Subrin and Tobias Wolff provided helpful comments on a draft, and
I benefited from discussion of this work at faculty workshops at Penn Law and the
University of Arizona. Michael O’Connor, University of Pennsylvania Law School
(Class of 2009), provided excellent research assistance.
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
102 WISCONSIN LAW REVIEW
Securities Litigation Reform Act of 1995 (PSLRA) after Tellabs, Inc. v.
Makor Issues & Rights, Ltd.1 is both interesting and useful, and I agree
with almost all of it.2 In this contribution to the Symposium, I will first
discuss the few matters about which Professor Miller and I apparently
disagree. I will then use the occasion of commenting on Miller’s paper as
an opportunity to attach a large tail to a small dog by turning to the
broader landscape of pleading, and arguing that Tellabs, another recent
pleading decision of the Supreme Court of the United States, Bell
Atlantic Corp. v. Twombly,3 and a case soon to be decided, Iqbal v.
Hasty,4 illustrate costs of, and constraints imposed by, some of the
foundational assumptions and operating principles of modern American
procedure.
The foundational assumptions I discuss are the notions that (1) the
“general rules” required by the 1934 Rules Enabling Act5 should be not
only uniformly applicable in all federal district courts, but uniformly
applicable in all types of cases (transsubstantive); (2) judicial discretion
should be preferred to formalism in the creation of such general rules;
and (3) once made through “The Enabling Act Process,” these general
rules can only be changed through that process (or by legislation).
The operating principles I discuss are (1) the view that general
rules should be not only transsubstantive but also, as it were,
transprocedural, and accordingly that different rules should not (usually)
be written for cases having different procedural needs; and (2) the
operating principle that has translated the preference for judicial
discretion into a preference for judicial power, resulting in the position
that legislative procedure is illegitimate.
The PSLRA’s ambiguities explored by Miller resulted from a
democratic process that is acknowledged as appropriate for the creation
of policy on important social issues, such as the issues that are
implicated when a system chooses pleading rules. Whether or not the
choices in the provision considered in Tellabs are wise, they are confined
1. 127 S. Ct. 2499 (2007).
2. See Geoffrey P. Miller, Pleading After Tellabs, 2009 WISC. L. REV. ____.
3. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007).
4. Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), cert. granted sub nom. Ashcroft
v. Iqbal, 128 S. Ct. 2931 (2008).
5. See Act of June 19, 1934, Pub. L. No. 73-415, 48 Stat. 1064. As currently
codified, the relevant language is:
(a) The Supreme Court shall have the power to prescribe general rules of
practice and procedure and rules of evidence for cases in the United States
district courts (including proceedings before magistrates thereof) and courts
of appeals.
28 U.S.C. § 2072(a) (2006).
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 103
to cases brought under the PSLRA. And if the policy choices it reflects
are buried, the concern is democratic accountability in the weak sense of
lawmakers taking responsibility for their actions.
The Federal Rules of Civil Procedure (“Federal Rules”) at issue
in Twombly, by contrast, resulted from a process that is not
acknowledged as appropriate for the creation of policy on important
social issues. If the policy choices they make are buried, the concern may
be democratic accountability in both the weak sense and in the strong
sense of separation of powers.
The argument (made by some lower courts and scholars) that the
standards emerging from Twombly should, and can, be confined to
antitrust conspiracy cases confronts the foundational assumptions that the
Federal Rules are transsubstantive and cannot be amended by judicial
interpretation. Moreover—taking the view that those standards do, in
fact, represent a change through judicial interpretation—the Supreme
Court acting as such under Article III is ill equipped to gather the range
of empirical data, and lacks the practical experience, that should be
brought to bear on the questions of policy, procedural and substantive,
that are implicated in considering standards for the adequacy of
pleadings, even in the antitrust context. Individual litigation under
Article III is even more obviously inadequate for the policy choices
implicated in considering standards for the adequacy of pleadings on a
transsubstantive basis.
The Court has an opportunity to clarify the meaning and scope of
its Twombly standards in Iqbal, but it is difficult to imagine what the
Court could do, other than affirm, without exacerbating confusion about
pleading standards. Yet, both the facts that the Court granted certiorari
and that Iqbal involves the interplay of pleading and the federal common
law of official immunity prompt concern that reversal is likely. The
question becomes how that could be accomplished with minimum
collateral damage. I argue that, if the Court is persuaded that the changes
already made to pleading jurisprudence are insufficient to accommodate
the needs of the immunity defense, it should forthrightly require fact
pleading as a matter of substantive federal common law.
These three cases thus illustrate the limits of, and costs created
by, foundational assumptions and operating principles imputed to, or
entailed in, the concept of general rules. I conclude with reflections about
one particular aspect of modern American procedure that has always
seemed to me perhaps the most serious such cost: its complexity.
It is well and good to defend a choice of judicial discretion over
formalism as the price of procedural justice. That argument is not
available, however, for the defense of the operating principle that refuses
to contemplate separate general rules for simple cases. One might regard
that choice as akin to the amount-in-controversy requirement in the
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
104 WISCONSIN LAW REVIEW
diversity statute, a necessary defense against the consumption of a scarce
resource by everyday cases of no importance. The comparison does not
work, in part because the cases in question by hypothesis meet any
jurisdictional requirement, and more importantly because the argument
reflects a buried policy choice afflicted with defects in democratic
accountability. Moreover, awareness that many states have followed the
model of the Federal Rules suggests that the ultimate cost of crafting the
general rules for complex cases may be closing this country’s courts to
those with everyday disputes.
I. ASSESSING THE ADEQUACY OF COMPLAINTS ALLEGING SCIENTER
AFTER TELLABS: TWO TESTS OR ONE?
Professor Miller’s analysis of the proper approach to assessing the
adequacy of securities-fraud complaints after Tellabs is rigorous and
sophisticated, and what he has to say is illuminating even if one
disagrees, as I do, with the analytical architecture that he attributes to the
Court. The statutory language in question provides that “the complaint
shall, with respect to each act or omission alleged to violate this chapter,
state with particularity facts giving rise to a strong inference that the
defendant acted with the required state of mind [scienter].”6 The Tellabs
Court’s interpretation of strong inference was that “an inference of
scienter must be more than merely plausible or reasonable—it must be
cogent and at least as compelling as any opposing inference.”7
I join Professor Miller in rejecting any interpretation of the Court’s
opinion that would give trumping force to a cogency requirement by
interpreting it as more demanding than “the requirement of comparative
inferential strength,”8 although Miller acknowledges that Judge Richard
Posner’s opinion on remand in Tellabs need not be read to do that.9 My
disagreement concerns the anterior question whether the Court in fact
intended to prescribe two tests for the adequacy of the particularized
pleadings on scienter that the PSLRA requires. Justice Ruth Bader
Ginsburg’s opinion is hardly a model of precision or consistency in the
use of language. On the view I take of it, that opinion well illustrates
what lexicographer H. W. Fowler called “elegant variation,” a vice of
those “intent rather on expressing themselves prettily than on conveying
6. 15 U.S.C. § 78u-4(b)(2) (2006).
7. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2504–05
(2007).
8. Miller, supra note 2, at 105.
9. See Makor Issues & Rights, Ltd. v. Tellabs Inc., 513 F.3d 702, 711 (7th Cir.
2008); Miller, supra note 2, at 109 n.18.
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 105
their meaning clearly.”10 For it appears to me that the Court regards the
adjective cogent as a synonym of strong (the word used in the PSLRA),
as also of compelling. In other words, “cogent and at least as compelling
as any plausible opposing inference” is an example of lawyers’ penchant
not just for “elegant variation” but for elegant redundancy, akin to
“arbitrary and capricious.”
The Court tells us that one cannot determine whether an inference is
strong without comparing it to other inferences.11 Since “strong
inference” is the statutory standard, this raises the question why a
comparative inquiry alone is not sufficient. If the inference of scienter
emerging from that inquiry is at least as strong (or compelling) as any
inference of nonscienter, then it is a strong inference as required by the
PSLRA. Judge Posner, who may have led Professor Miller down a path
to nowhere, acknowledged, “It is easier to consider the second, the
comparative, question first.”12 Indeed it is, because if (1) cogent means
strong, and (2) whether an inference is strong can only be determined
through a comparative exercise, answering the second question will
always answer the first.
Unlike Professor Miller, in other words, I do not believe that the
Court intended by the use of cogent to establish “a baseline of
plausibility that an inference of scienter must meet in order to meet the
Tellabs standard.”13 To be sure, Miller has been able to imagine a
situation in which an inference that qualified as strong under the Court’s
required comparative analysis might not be deemed plausible under a
particular view of what plausibility requires, because, although as strong
as any competing inference, it is not “strong compared with the
competing inferences taken together.”14 At the least, however, bringing
plausibility on to the stage for this purpose is unfortunate because, in
rejecting the view that the PSLRA requires only a plausible inference of
scienter, the Court equated plausible with reasonable.15 Further, it is
difficult to square Miller’s advocacy of two tests with the view (which I
share) that “[t]he proper test, in the majority’s view, is that the plaintiff
wins in the event the competing inferences are equally strong.”16
10. H.W. FOWLER, A DICTIONARY OF MODERN ENGLISH USAGE 130 (1926).
11. See Tellabs, 127 S. Ct. at 2510 (“The strength of an inference cannot be
decided in a vacuum. The inquiry is inherently comparative: How likely is it that one
conclusion, as compared to others, follows from the underlying facts?”).
12. Makor, 513 F.3d at 707.
13. Miller, supra note 2, at 106.
14. Id.
15. See Tellabs, 127 S. Ct. at 2504–05 (“[A]n inference of scienter must be
more than merely plausible or reasonable . . . .”).
16. Miller, supra note 2, at 105; see id. at 126 (“[T]here is no deference
accorded to inferences of scienter aside from the stipulation that a tie goes to the
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
106 WISCONSIN LAW REVIEW
Miller describes his putative discrete cogency requirement as “much
less complex,” and, contrary to Judge Posner on remand in Tellabs,17
urges courts to address it “before investigating comparative inferential
strength.”18 In truth, he is advocating two comparative exercises. For, as
Judge Posner observed, “The plausibility of an explanation depends on
the plausibility of the alternative explanations.”19 Miller admits as much
when he states, “The court merely needs to evaluate the strength of a
single inference—that of scienter—and to compare this against an
absolute baseline of inferential strength.”20 Even if the two comparative
exercises Miller imputes to Tellabs are not doomed to redundancy, his
survey of the content that could be given to such an absolute baseline is
likely to inspire fear and loathing in anyone who understands the threat
that legal indeterminacy about the freedom of judges to police inferences
presents to policies underlying both the substantive law and the Seventh
Amendment.21 And what is the point if, as Miller appears to conclude,
the absolute baseline should be set at a point where, predictably, an
inference satisfying the requirement will often not be as strong as
“competing inferences taken together”?22 That, after all, is the situation
with which his putative discrete cogency requirement is supposed to
plaintiff.”). In rejecting a “super comparative strength standard,”id. at 108, as the baseline
for his putative discrete cogency requirement, Professor Miller observes that it “would
nullify the requirement of comparative inferential strength as an independent factor,
notwithstanding the clear emphasis in the Tellabs opinion on the importance of this
analysis.” Id. Indeed it would. Because the comparative analysis alone engaged the
Court’s attention, it seems unlikely that the Justices intended to smuggle another
requirement through, here, the front door (“cogent and at least as compelling as any
opposing inference”).
17. See Makor, 513 F.3d at 707; supra text accompanying note 11.
18. Miller, supra note 2, at 108.
19. Makor, 513 F.3d at 711.
20. See Miller, supra note 2, at [109]. The notion that one can evaluate the
strength of an inference—determine where it falls on the baseline—without first (or,
apart from) making the comparison Professor Miller calls for neglects Judge Posner’s
reminder. See supra text accompanying note 19.
21. See Stephen B. Burbank, Vanishing Trials and Summary Judgment in
Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. EMPERICAL LEGAL
STUD. 591, 623 (2004) (contending that neither the Seventh Amendment, as interpreted,
nor the Supreme Court’s 1985–86 summary-judgment trilogy provides much protection
against “a court that, for whatever reason, has an expansive definition of chaff and hence
is impatient with the pleas of a litigant to continue with an apparently weak case”).
22. Miller, supra note 2, at [106]. Professor Miller apparently favors an
“intermediate standard” that (in his example) posits a 20 percent probability for the
inference of scienter, and three competing inferences not implicating scienter with
probabilities of 25 percent, 25 percent, and 30 percent, respectively. See Miller, supra
note 2, at 108. Although the example does indeed “illustrat[e] that the two tests can be
applied independently of one another,” id. at 108, it also illustrates why the discrete
cogency requirement he champions would usually not do the work that supposedly
justifies its existence.
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 107
deal. Thus, it is no surprise that this putative requirement is nowhere to
be seen in the last two thirds of Professor Miller’s article, where he very
valuably explores the process of inference in typical scenarios presented
by securities-fraud cases.23
II. FOUNDATIONAL ASSUMPTIONS AND OPERATING PRINCIPLES
One of the foundational assumptions of modern American
procedure is that the Rules Enabling Act’s reference to “general rules”24
forecloses the promulgation of different prospective rules for cases that
involve different bodies of substantive law. The Advisory Committee
that the Supreme Court appointed in 1935 discussed the meaning of that
phrase at its first meeting.25 The focus of the discussion was whether, as
one of its members had contended in a remarkable piece of revisionist
history published the year before,26 the Enabling Act could be read to
accommodate different rules on the same subject (e.g., discovery) for the
district courts in different states—in other words, conformity to state law
as under the Conformity Act of 1872.27 Firmly (and correctly) rejecting
this position,28 the Advisory Committee seems simply to have assumed
that its interpretation of general rules in that respect entrained the
23. See id. at [109–27].
24. See supra n. 5.
25. Summary of Proceedings of the First Meeting of the Advisory Committee,
held in the Federal Building at Chicago, June 20, 1935, microformed on Records of the
U.S. Judicial Conference, Committees on Rules of Practice and Procedures, 1935-1988,
No. CI-103-30, at 6-7 (Cong. Info. Serv.) [hereinafter Summary of Proceedings] (“The
first matter considered was the meaning of the term general rules as used in the statute,
and whether the statute contemplates that all rules promulgated shall operate uniformly in
all the districts, or whether the Court may promulgate some rules for some districts and
other rules for other districts. In this connection the discussion covered the question of
conformity between state and federal practice. After full discussion, it was the unanimous
opinion of those present that the statute contemplates that in sofar as unified rules are
promulgated they must operate uniformly in all the districts . . . .”).
26. See Edson R. Sunderland, The Grant of Rulemaking Power to the Supreme
Court of the United States, 32 MICH. L. REV. 1116, 1128 (1934); see also, Edson R.
Sunderland, Character and Extent of the Rule-Making Power Granted U.S. Supreme
Court and Methods of Effective Exercise, 21 A.B.A. J. 404, 405 (1935). The Michigan
article almost cost its author a seat on the Advisory Committee, and Charles Clark used it
to advance his own interest in becoming the Reporter. See Stephen B. Burbank, The
Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1135–36 (1982) (discussing
Sunderland’s revisionist articles, the discussion at the Advisory Committee’s first
meeting, and Clark’s maneuvering).
27. Act of June 1, 1872, ch. 255, §§ 5–6, 17 Stat. 196, 197. Sunderland could
not attend this meeting. See Summary of Proceedings, supra note [25], at 1..
28. See id. at 7..
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
108 WISCONSIN LAW REVIEW
additional requirement that rules promulgated under the Enabling Act be
not only geographically uniform but transsubstantive.29
The meaning of the Enabling Act aside, the normative question
whether we are well served today by a rule-making enterprise that
continues to frame rules and amendments for all cases filed in federal
district court, no matter what the source or content of the substantive law,
has been a subject of vigorous discussion and debate in the literature.30
Defenders of this foundational assumption have, by and large, ignored
the fact that those questioning it are not calling for wholly different
procedural regimes for different bodies of substantive law.31 The call in
this respect has been for consideration of altering only discrete Federal
Rules, or portions thereof, that do not satisfactorily implement the
policies underlying a body of substantive law or a particular scheme of
substantive rights, with all other Federal Rules remaining applicable.32
29. See Stephen B. Burbank, Of Rules and Discretion: The Supreme Court,
Federal Rules and Common Law, 63 NOTRE DAME L. REV. 693, 713–14 n.140 (1988)
[hereinafter Burbank, Of Rules and Discretion] (“The question whether uniformity
necessarily entails trans-substantivity was not addressed probably because it was
assumed.”); Stephen B. Burbank, The Transformation of American Civil Procedure: The
Example of Rule 11, 137 U. PA. L. REV. 1925, 1935 (1989) [hereinafter Burbank,
Transformation] (noting lack of support for that position in legislative history of the 1934
Act or in the long history preceding its enactment); Stephen N. Subrin, How Equity
Conquered Common Law: The Federal Rules of Civil Procedure in Historical
Perspective, 135 U. PA. L. REV. 909, 956–61 (1987); id. at 995–96 (“Such an integration
of procedure and substance, however, would have required a degree of technicality,
categorization, and definition that was at odds with the simplicity and uniformity themes
the proponents had developed to propel their reform.”). As Professor Bone maintains, the
view then obtaining that procedure was independent of substantive law “implied that
procedural rules could and should be general in nature and ‘trans-substantive.’” Robert G.
Bone, Making Effective Rules: The Need for Procedure Theory, 61 OKLA. L. REV. 319,
324 (2008).
30. See, e.g., Burbank, Of Rules and Discretion, supra note 29 (criticizing
insistence on transsubstantivity); Paul A. Carrington, Making Rules to Dispose of
Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Substantive
Rules of Civil Procedure, 137 U. PA. L. REV. 2067 (1989) (defending transsubstantivity);
Robert M. Cover, For James Wm. Moore: Some Reflections on a Reading of the Federal
Rules, 84 YALE L.J. 718, 731 (1975); Subrin, supra note 29. Recently, Professor Bone
has asserted that “we must bury, once and for all, the thoroughly misguided idea that
transsubstantivity is an independent value or ideal for the Federal Rules.” Bone, supra
note 29, at 333.
31. See, e.g., Geoffrey C. Hazard, Jr., Discovery Vices and Trans-Substantive
Virtues in the Federal Rules of Civil Procedure, 137 U. PA. L. REV. 2237, 2244 (1989)
(“This critique contemplates separate sets of rule for civil rights cases, antitrust cases,
routine automobile cases, and so on.”).
32. See Burbank, Of Rules and Discretion, supra note 29, at 716–17 (noting the
existence of RICO standing orders and asking, “[W]hy should we not have uniform rules
that govern such cases, and those like them, in the respects in which they are deemed
atypical, either because of their procedural requirements or the requirements of the
substantive law?”); see also Stephen N. Subrin, Fudge Points and Thin Ice in Discovery
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 109
Notwithstanding this discussion and debate, and notwithstanding
dramatic evidence of the costs of transsubstantive procedure furnished
by, for example, the modern class action under Rule 23 as amended in
1966,33 transsubstantivity has remained a foundational assumption for all
subsequent advisory committees. An important reason may be that
departures from it raise questions of institutional power and legitimacy.34
Another foundational assumption of modern American procedure is
that judicial discretion is to be preferred to formalism (defined as a
preference for rules having substantial determinative content).35 This is
also an operating principle entailed by the first foundational assumption,
that is, by the supposed attributes of general rules. For rules of the scope
required by the traditional interpretation of that term, formalism is
hopeless.36 In any event, viewed either as a normative preference or as a
practical necessity, this characteristic of modern American procedure is
hardly surprising when one considers that the chief architects of the
original 1938 Federal Rules were steeped in knowledge of the costs of
inflexibility associated with common law and code procedure, infatuated
with the flexibility of equity (to the point of ignoring its costs), and
Reform and the Case for Selective Substance-Specific Procedure, 46 FLA. L. REV.27
(1994)..
No one I know is suggesting a return to the forms of action
or a wholesale rejection of transsubstantive procedure. Some
of us, however, are suggesting that it is time both to face facts
(in particular the fact that uniformity and transsubstantivity
rhetoric are a sham) and to find out the facts (in particular
the facts about discretionary justice). A “veil of ignorance”
may be an apt metaphor to describe federal rulemaking
to date. It is not, I contend, an appropriate normative posture
for the rulemakers of the future.
Burbank, Transformation, supra note 29, at 1940–41; see Bone, supra note 29, at 333–
34; id. at 334 (“[The o]ptimal level of generality should be determined not by reference
to some trans-substantive ideal, but by balancing the costs and benefits of general versus
specific rules.”).
33. See, e.g., Stephen B. Burbank, Aggregation on the Couch: The Strategic
Uses of Ambiguity and Hypocrisy, 106 COLUM. L. REV. 1924, 1927–31 (2006)
(discussing the problem of inefficient overenforcement posed by small-claims class-
action lawsuits under Federal Rule 23).
34. See infra text accompanying notes 108 & 116.
35. GEOFFREY C. HAZARD, JR., RESEARCH IN CIVIL PROCEDURE 9 (1963) (“[A]
rule, to have cognitive and normative significance as such, must have an important
degree of determinative content to the group to whom it is addressed.”).
36. See Burbank, Transformation, supra note 29, at 1940–41 (“[U]niformity
and trans-substantivity rhetoric are a sham.”); Burbank, Of Rules and Discretion, supra
note 29, at 715 (“Federal Rules that avoid policy choices and that in essence chart ad hoc
decision-making by trial judges are uniform and hence trans-substantive in only the most
trivial sense.”).
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
110 WISCONSIN LAW REVIEW
thoroughly versed in both the ethos of progressive regulation and the
lessons of legal realism.37
Another operating principle, related to, but not required by, the
foundational assumption concerning general rules, is that different rules
should not (usually) be written for cases having different procedural
needs, as for instance to establish different procedural tracks.38 Whether
this (as it were) transprocedural impulse has been thought a necessary (or
useful) protection for transsubstantivity or for the discretion of the
individual district-court judge, it was in any event sufficiently strong to
prevent any district court from effectively responding to a congressional
call for experimentation with procedural tracking in 1990.39 When one
considers that the federal courts are effectively inaccessible to many
whose claims satisfy the amount-in-controversy requirement of the
diversity statute,40 it does not seem far-fetched to believe that, like that
requirement itself, this transprocedural impulse has been useful to ensure
that the business of the federal courts is business.41
37. See Subrin, supra note 29, passim; see also Burbank, supra note 21, at 597–
98 & n.20 (discussing ties of the two chief architects of the Federal Rules to the
Progressive and Legal Realism movements). For another view of “the Progressive drive
for procedural uniformity,” see Kenneth W. Graham, Jr. The Persistence of Progressive
Proceduralism (reviewing JULIUS LEVINE, DISCOVERY: A COMPARISON BETWEEN
ENGLISH AND AMERICAN CIVIL DISCOVERY LAW WITH REFORM PROPOSALS (1982)), 61
TEX. L. REV. 929 (1983). Professor Graham attributes its embrace by academics to
[their] unconscious understanding that lack of uniformity is a threat to the
claim that procedure is a value-free science. If there is more than one
scientifically valid way to litigate, then the choice of one or the other
procedural system must be based on values; in other words, the selection of
one mode of proceeding over another is a political choice.
Id. at 945.
38. For a limited exception, see FED. R. CIV. P. 26(a)(1)(B) (exempting eight
categories of cases from initial disclosure requirement).
39. See JAMES S. KAKALIK ET AL., RAND INST. FOR CIVIL JUSTICE, JUST,
SPEEDY, AND INEXPENSIVE? AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE
CIVIL JUSTICE REFORM ACT 11–13 (1996); id. at 12 (“The consequence was that almost
all general civil cases to which CJRA procedural principles might be relevant were
placed in the standard track, if any tracking assignment was made.”).
40. See G
REGORY P. JOSEPH, FEDERAL LITIGATION – WHERE DID IT GO OFF
TRACK? (2008), available at http://www.josephnyc.com/articles/viewarticle.php?53
(“Twenty-five years ago, on January 1, 1983, it cost parties roughly the same to litigate in
state and federal court. Plaintiffs chose federal court sometimes for expansive discovery
or to get a good judge, even though state court was an available alternative and additur
impermissible in federal court. Today, plaintiffs with non-federal causes of action flee
federal court, and those with federal claims scour the books for state law analogues.”);
see also Stephen B. Burbank, The Complexity of Modern American Civil Litigation:
Curse or Cure?, 91 JUDICATURE 163 (2008); infra text accompanying notes 118–120.
41. See E
DWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL
DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870–1958, at 256 (1992) (“[T]he
Justices generally if implicitly believed that they should maintain federal jurisdiction over
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 111
Finally, again not logically entailed (by the foundational assumption
that judicial discretion is to be preferred to formalism) but institutionally
convenient, is an operating principle that translates that preference into a
preference for judicial power and, under the cover of the Enabling Act
Process, paints statutory procedure as illegitimate, even when crafted for
territory outside of the supposed boundaries of that process (because
substance-specific). It is quite literally astonishing that the institutional
federal judiciary has repeatedly objected when Congress has proposed to
do what the rulemakers contend they cannot do, namely, fashion a
particular procedural rule for a particular substantive context thought to
require a departure from the Federal Rules. One of the occasions for such
objections was the consideration of bills that became the PSLRA.42 As I
have previously observed:
[B]ehind the judiciary’s objections there may, therefore, lie
either a claim that the Federal Rules represent the best
accommodation of procedural values, and the best effectuation
of substantive values, for every type of case in federal court, or
a claim that the costs to such values are outweighed by the
benefits of formally uniform procedure.43
Or again:
[F]or those many matters where the Federal Rules make no
choices, leaving the procedure/substance accommodation to
discretionary decisionmaking, the claim must be that
Congress’s substantive agenda is always better served by
issues and interests that they regarded as having national importance.”); Stephen B.
Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary
View, 156 U. PA. L. REV. 1439, 1533 (2008) (suggesting that supposed need to deal with
overlapping class-action lawsuits “may provide cover to those among CAFA’s
supporters, in and out of Congress, who do not wish to be associated with the notion that
the business of the federal courts is business”).
42. See Burbank, Role of Congress, supra note 29, at 1702, 1729, 1731
(discussing the judiciary’s opposition to various congressional bills containing procedural
provisions, including bills that led to the PSLRA).
43. Id. at 1731. Formally uniform as used here refers not to formalism, but to
the fact that the Federal Rules are largely uniform only in appearance, not in fact. See
supra note 36. I also noted:
An objection that invokes “The Enabling Act Process” may simply (albeit
fecklessly) signal the judiciary’s concern that, given the circumstances in
which so much contemporary legislation is enacted, described above,
statutory procedure is unlikely to be well made, viewed either discretely or as
part of the larger procedural landscape in which it will repose.
Id.
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
112 WISCONSIN LAW REVIEW
trusting to the discretion of federal judges and thus abjuring
the potentially potent technique of using procedure to drive, or
to mask, substance.44
III. PLEADING AND THE DILEMMAS OF “GENERAL RULES”
Professor Miller quotes Judge Posner’s observation that, “To judges
raised on notice pleading, the idea of drawing a ‘strong inference’ from
factual allegations is mysterious.”45 Until quite recently, much of
Miller’s paper might have induced cognitive dissonance in those who
practice, or are otherwise concerned with, pleading in the federal courts.
But times have changed, and pleading’s new—or, more precisely,
renewed46—prominence in the procedural landscape is hardly confined
to cases brought under the PSLRA. Indeed, many of Professor Miller’s
observations about the post-Tellabs world of pleading and Rule 12(b)(6)
motions to dismiss in cases governed by the PSLRA may be applicable
more generally as a result of another Supreme Court pleading decision
during the October Term 2006, Bell Atlantic Corp. v. Twombly.47
In Twombly, the Court reinstated the dismissal under Rule 12(b)(6)
of an antitrust-conspiracy complaint brought under section 1 of the
Sherman Act against the regional telecommunications-service providers
remaining after the breakup of AT&T. The plaintiffs alleged two
different types of anticompetitive parallel conduct, the first reflecting a
conspiracy to prevent competitors from entering the defendants’ existing
service areas, and the second a conspiracy to ensure that the defendants
did not compete in each other’s service areas. The plaintiffs inferred the
latter conspiracy from the companies’ “failure meaningfully [to] pursu[e]
attractive business opportunities,” and from a statement by Qwest’s CEO
that such competition might be profitable.48 In reversing a panel of the
United States Court of Appeals for the Second Circuit, the Court
abrogated the long-standing standard of Conley v. Gibson49 that “a
complaint should not be dismissed . . . unless it appears beyond doubt
that the plaintiff can prove no set of facts . . . which would entitle him to
44. Id. at 1731–32.
45. Miller, supra note 2, at [103] n.10 (quoting Makor Issues & Rights, Ltd. v.
Tellabs Inc., 513 F.3d 702, 705 (7th Cir. 2008)).
46. See Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1975–77 (2007)
(Stevens, J., dissenting) (discussing notice pleading as a response to “[t]he English
experience with Byzantine special pleading-rules” and the Field Code’s requirement of
pleading “‘facts’ rather than ‘conclusions’”).
47. Id.
48. Id. at 1962.
49. 355 U.S. 41 (1957).
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 113
relief.”50 Agreeing, however, with Conley that a complaint must give
“fair notice of what the . . . claim is and the grounds upon which it
rests,”51 the Court interpreted the latter as requiring that its “[f]actual
allegations must be enough to raise a right to relief above the speculative
level.”52 The Court then held that, for a section 1 Sherman Act claim,
these standards “require[d] a claim with enough factual matter (taken as
true) to suggest that an agreement was made.”53 It concluded that the
plaintiffs rested their claims on “parallel conduct and not on any
independent allegation of actual agreement among the” companies,54 and
that the statements of the Qwest CEO were taken out of context.55
The courts of appeals have struggled to determine Twombly’s
precise meaning and scope of application, and their efforts have resulted
in different approaches.56 In Iqbal v. Hasty, the Second Circuit
recognized conflicting signals in the Court’s opinion, concluding that:
[T]he Court is not requiring a universal standard of heightened
fact pleading, but is instead requiring a flexible “plausibility
standard,” which obliges a pleader to amplify a claim with
some factual allegations in those contexts where such
amplification is needed to render the claim plausible.57
The United States Court of Appeals for the Third Circuit has emphasized
Twombly’s twin prongs of notice and plausibility, concluding that it
required “enough facts to raise a reasonable expectation that discovery
will reveal evidence of the necessary element.”58 Meanwhile, the United
States Court of Appeals for the Seventh Circuit has focused on notice,59
50. Id. at 45–46; see Twombly, 127 S. Ct. at 1969 (“This famous observation
has earned its retirement.”).
51. Twombly, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47).
52. Id. at 1965.
53. Id.
54. Id. at 1970.
55. See id. at 1972 n.13.
56. The First, Second, Third, Sixth Seventh, Tenth, Eleventh, D.C. and Federal
Circuits have directly addressed the issue. Others have noticed its effect. See, e.g.,
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 n.7 (4th Cir. 2007). (“In the wake of
Twombly, courts and commentators have been grappling with the decision’s meaning and
reach.”).
57. Id. at 157–58. Since then, the Second Circuit has acknowledged that Iqbal
“does not offer much guidance to plaintiffs regarding when factual ‘amplification [is]
needed to render [a] claim plausible.’” Boykin v. Keycorp, 521 F.3d 202, 213 (2d Cir.
2008) (quoting Iqbal, 490 F.3d at 158).
58. Phillips v. Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
59. See Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663,
667 (7th Cir. 2007); EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 782 (7th Cir.
2007).
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
114 WISCONSIN LAW REVIEW
while admitting that Twombly probably did not change the notice
requirement.60 In addition, another panel of that court has endorsed a
standard that requires greater particularlity in light of the burdens of
discovery in complex litigation,61 an approach anticipated by the Second
Circuit in Iqbal.62
There is an important difference, however, between Professor
Miller’s project and the business of sorting out the confusion that
Twombly has created. The ambiguities Miller explores arise in the
interpretation of statutory language prescribing procedural requirements
for a specific substantive context. They thus emerge from a democratic
process which, even if known for strategic ambiguity,63 is acknowledged
as appropriate for the resolution of broad questions of social policy such
as those—access to court, competition for legal services, and norm
enforcement—to which Miller adverts at the end of his paper.64 If any
policy choices are buried in statutory procedure, the resulting concern
involves democratic accountability in the weak sense, namely duly
authorized actors taking responsibility for their decisions.65 Moreover,
ambiguous or not, the choices operate only in the substantive context that
is the subject of the legislation.
Twombly’s ambiguities, on the other hand, arise in the interpretation
of prospective court rules crafted for all civil actions in the federal
courts. They thus emerge from a process that, although it has
increasingly come to resemble the legislative process in recent decades,66
60. See Concentra, 496 F.3d at 782–83 n.4.
61. See Limestone Dev. Corp. v. Lemont, 520 F.3d 797, 803 (7th Cir. 2008)
(Posner, J.) (“RICO cases, like antitrust cases, are ‘big’ cases and the defendant should
not be put to the expense of big-case discovery on the basis of a thread-bare claim”)..
62. See Iqbal, 490 F.3d at 157–58.
63. Professors Grundfest’s and Pritchard’s work on the strategic uses of
ambiguity by Congress and the federal courts used the PSLRA as the basis for empirical
testing of their general hypotheses. See Joseph A. Grundfest & A.C. Pritchard, Statutes
with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and
Interpretation, 54 STAN. L. REV. 627 (2002). Of particular interest for present purposes
are their views that (1) Congress chose to “sidestep,” id. at 658, the state of mind required
for liability (i.e., recklessness or knowledge?) in favor of tightening the pleading standard
required to withstand a motion to dismiss, and that (2) the resulting strong-inference
requirement was the subject of intense debate and disagreement and is itself an example
of strategic ambiguity. See id. at 652–66.
64. See Miller, supra note 2, at [123-128].
65. See Stephen B. Burbank, The Costs of Complexity (reviewing RICHARD L.
MARCUS & EDWARD F. SHERMAN, COMPLEX LITIGATION (1985)), 85 MICH. L. REV. 1463,
1475 (1987).
66. See Burbank, Role of Congress, supra note 29, at 1724 (“[T]he changes in
the rulemaking process in the 1980s that were designed to open it up to more and more
diverse points of view, make it more transparent, and diminish the need for congressional
involvement, may in fact have facilitated a process of redundancy wherein participants
treat rulemaking that is at all controversial as merely the first act.”).
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 115
is not acknowledged as appropriate for the resolution of broad questions
of social policy. If any such policy choices are buried in the Federal
Rules—or (more likely) in discretionary decisions made under their
authority—the resulting concern involves democratic accountability in
both the weak sense previously defined and in the strong sense of
separation of powers.67 Moreover, even if animated by the perceived
substantive or procedural needs of antitrust law and litigation,
Twombly’s choices cannot comfortably be confined to that context by
reason of another foundational assumption, one that the Court has
emphatically endorsed in the pleading context on more than one
occasion.68 General rules made through the Enabling Act Process can
only be changed through that process (or by legislation).69
Still, Professor Miller helps us to see that, by tracking distinctions
between the PSLRA’s provisions regarding fact pleading and probative
force70 and relating them to different requirements in the Federal Rules
of Civil Procedure, we may be able to grasp the architecture of the
Court’s decision in Twombly. We are thus in a better position to
understand, even if we have trouble accepting, the Court’s assertion that
the latter decision did not change the requirements of Federal Rule 8 (or
67. See Burbank, supra note 65, at 1475.
68. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002);
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S.
163, 168 (1993) (“Perhaps if Rules 8 and 9 were rewritten today, claims against
municipalities under § 1983 might be subjected to the added specificity requirement of
Rule 9(b). But that is a result which must be obtained by the process of amending the
Federal Rules, and not by judicial interpretation.”). But see Jones v. Bock, 549 U.S. 199,
212 (2007) (“In a series of recent cases, we have explained that courts should generally
not depart from the usual practice under the Federal Rules on the basis of perceived
policy concerns.”) “Generally”? The Court’s unanimous opinion in this case, rejecting all
of the three procedural roadblocks that the United States Court of Appeals for the Sixth
Circuit had created to thwart prisoner litigation, including a heightened pleading
requirement, may here anticipate Twombly as a departure from “the usual practice.” Jones
was argued on October 30, 2006. 549 U.S. at 199. Twombly was argued on November 27,
2006. 127 S. Ct. at 1955. Perhaps Jones was designed to anticipate and calm fears
engendered by Twombly, which may explain why it so thoroughly confounds the
attitudinal model of judicial behavior. See Stephen B. Burbank, The Greening of Harry
Blackmun, 101 NW. U. L. REV. COLLOQUY 137, 142 (2007) (“I doubt that either an
attitudinal or a strategic model of judicial behavior can explain a decision like Jones v.
Bock.”); see also infra note 86 (discussing Erickson v. Pardus, 127 S. Ct. 2197 (2007)).
69. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 861 (1999) (“[W]e are bound
to follow Rule 23 as we understood it upon its adoption, and . . . we are not free to alter it
except through the process prescribed by Congress in the Rules Enabling Act.”); Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (“The text of a rule thus proposed and
reviewed limits judicial inventiveness. Courts are not free to amend a rule outside of the
process Congress ordered, a process properly tuned to the instruction that rules of
procedure ‘shall not abridge . . . any substantive right.’”) (quoting 28 U.S.C. § 2072(b)).
70. The PSLRA provision on scienter deals with both. See 15 U.S.C. § 74u-
4(b)(2) (2006); see also Miller, supra note 2, at 102 n.3.
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
116 WISCONSIN LAW REVIEW
Federal Rule 9).71 In particular, we can now clearly see that Twombly’s
plausibility requirement has more to do with Rule 12(b)(6) than it does
with Federal Rule 8,72 confirming the message suggested by careful
attention to the role of the language in Conley v. Gibson73 that the
Twombly Court repudiated.74 That said, it is unfortunate that the Court
(1) obscured this message in loose talk about the notice-giving function
of pleadings under the Federal Rules, which has nothing to do with
Federal Rule 12(b)(6) as opposed to Federal Rule 12(e),75 and (2) failed
to spell out why allegations of conspiracy in the Twombly complaint
should be viewed differently than the allegation that “the defendant
71. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) (“[W]e do not
require heightened fact pleading of specifics, but only enough facts to state a claim to
relief that is plausible on its face.”).
72. Cf. Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir.
1999) (“Where the plaintiff has gone astray is in supposing that a complaint which
complies with Rule 8(a)(2) is immune from a motion to dismiss.”).
73. 355 U.S. 41 (1957). The Court in Conley treated separately the question
whether the complaint in that case stated a claim upon which relief could be granted and
whether it was defective for failure to set forth specific facts. As to the former, the Court
followed “the accepted rule 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 in support
of his claim that would entitle him to relief.” Id. at 45–46. This is the “famous
observation” that the Twombly Court said had “earned its retirement.” 127 S. Ct. at 1969;
see supra note 50 and accompanying text. In subsequently rejecting the respondents’
contention that the complaint was insufficiently specific, the Conley Court regarded as
the “decisive answer . . . that the Federal Rules of Civil Procedure do not require a
claimant to set out in detail the facts upon which he bases his claim.” 355 U.S. at 47. In
that regard, the Court observed that “[s]uch simplified ‘notice pleading’ is made possible
by the liberal opportunity for discovery and the other pretrial procedures established by
the Rules to disclose more precisely the basis of both claim and defense and to define
more narrowly the disputed facts and issues,” id. at 47–48, referring in a footnote to,
among others, Federal Rule12(e). Id. at 48 n.9.
74. To the extent that Conley’s interpretation of the standard under Federal
Rule 12(b)(6) faithfully reflected the Court’s understanding of the meaning of that rule
when first promulgated, Twombly’s rejection of the operative language was inconsistent
with the notion that the Court was “bound to follow [Federal Rule 12(b)(6)] as [the
Court] understood it upon its adoption.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 861
(1999); see also supra note 69 and accompanying text.
75. See Twombly, 127 S. Ct. at 1970 n.10. In that regard, the Court elevated
another passage in Conley to status as part of, rather than a gloss on, Federal Rule 8. See
id. at 1964 (“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
(quoting Conley, 355 U.S. at 47)). Although this passage occurs in that part of Conley
where the Court rejected the respondents’ contention that the complaint was
insufficiently specific, see supra note 73, the Twombly Court used it to support the
proposition that a “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 127 S. Ct. at 1965; see also supra
text accompanying note 51.
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 117
negligently drove a motor vehicle against the plaintiff” in an Official
Form accompanying the Federal Rules.76
Tellabs’s distinction between plausible and strong (or cogent)
inferences may also be helpful in divining the proper application of
Twombly if, as lower-court decisions suggest, the Court’s reasoning and
interpretations are not confined to complaints alleging antitrust
conspiracy under the Sherman Act.77 The problem here is that certain
language in Twombly can be read to mean that the Court’s standard—by
hypothesis, generally applicable—is more demanding than the standard
under the PSLRA. The language in question can be read to require that
inferences—or to the extent that a complaint does not rely on inferences,
direct allegations—grounding liability be not just plausible in the Tellabs
sense (reasonable), and not just as strong (cogent or compelling) as any
competing account, but stronger than any account of nonliability.78 Of
course, that would be ridiculous. The answer to this puzzle lies in
Twombly’s substantive-law context and in the Court’s reading of the
complaint. As to the former, previous decisions had established that,
76. Twombly, 127 S. Ct. at 1970 (“Although in form a few stray statements
speak directly of agreement, on fair reading these are merely legal conclusions resting on
the prior allegations.”); see id. at 1971 n.11. Perhaps “legal conclusions” are those the
plausibility (reasonableness) of which cannot be confirmed on the basis of the rest of the
complaint assessed in light of both background knowledge about human behavior and the
substantive law. Thus, it is not implausible that the driver of a car that strikes a pedestrian
has been negligent in some respect. Cf. Iqbal v. Hasty, 490 F.3d 143, 157–58 (2d Cir.
2007) (“[W]e believe the Court is not requiring a universal standard of heightened fact
pleading, but is instead requiring a flexible ‘plausibility standard,’ which obliges a
pleader to amplify a claim with some factual allegations in those contexts where such
amplification is needed to render the claim plausible.”). Alternatively, the complaint in
Form 11 (formerly Form 9) does not require the adverb, negligently, in order to withstand
a Federal Rule 12(b)(6) motion, even if one deems the allegation of negligence a legal
conclusion. See infra text accompanying note 83. In that regard, the Court left the adverb
negligently out of its discussion of the Form 9 complaint. See Twombly, 127 S. Ct. at
1970–71 n.10. But see Iqbal, 490 F.3d at 156 (“The Court noted that Form 9 specifies the
particular highway the plaintiff was crossing and the date and time of the accident . . . but
took no notice of the total lack of an allegation of the respects in which the defendant is
alleged to have been negligent . . . .”).
77. See, e.g., Iqbal, 490 F.3d at 157 n.7 (“For example, it would be cavalier to
believe that the Court's rejection of the ‘no set of facts’ language from Conley, which has
been cited by federal courts at least 10,000 times in a wide variety of contexts (according
to a Westlaw search), applies only to section 1 antitrust claims.”). For an excellent
analysis of Twombly from this perspective, see A. Benjamin Spencer, Plausibility
Pleading, 49 B.C. L. REV. 431 (2008).
78. See, e.g., Twombly, 127 S. Ct. at 1964 (describing parallel conduct as
“consistent with conspiracy, but just as much in line with a wide swath of rational and
competitive business strategy unilaterally prompted by common perceptions of the
market”); id. at 1966 (“[W]hen allegations of parallel conduct are set out in order to make
a § 1 claim, they must be placed in a context that raises a suggestion of a preceding
agreement, not merely parallel conduct that could just as well be independent action.”).
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
118 WISCONSIN LAW REVIEW
although parallel conduct grounds a permissible inference of conspiracy,
such evidence is insufficient as a matter of law to warrant a finding of
conspiracy.79 As to the latter, rightly or wrongly, the Court in Twombly
read the complaint as alleging only parallel conduct (refusing to count,
among other things, what it deemed legal conclusions of conspiracy).80
On this view, in other words, Twombly was a case in which the plaintiffs
pleaded themselves out of court.81
Most cases are not subject to a requirement of fact pleading,
whether imposed by statute or by Federal Rule 9(b). More important, in
most substantive-law areas the courts have not finely and categorically
policed the inferences that juries are permitted to draw.82 In such garden-
variety cases, I suggest, a pleading that provides sufficient notice to
survive a Federal Rule 12(e) motion should also survive a motion under
Federal Rule 12(b)(6) if its nonconclusory allegations, taken as true, and
any inferences reasonably drawn from them, tell a plausible (as the
Tellabs Court would define it) story of liability. As suggested, whether
79. Id. at 1982 (“Under Matsushita, a plaintiff's allegations of an illegal
conspiracy may not, at the summary judgment stage, rest solely on the inferences that
may be drawn from the parallel conduct of the defendants.” (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
80. See, e.g., id. at 1967; id. at 1971 n.11 (“[I]n fact, they proceeded exclusively
via allegations of parallel conduct.”); see also id. at 1972 n.13 (noting that comments by
the CEO of Qwest were taken out of context).
81. For an early analysis of Twombly along these lines, see Allan Ides, Bell
Atlantic and the Principle of Substantive Sufficiency Under Federal Rule of Civil
Procedure 8(a)(2): Toward a Structured Approach to Federal Pleading Practice, 243
F.R.D. 604 (2007); see also Scott Dodson, Essay, Pleading Standards After Bell Atlantic
Corp. v. Twombly, 93 VA. L. REV. IN BRIEF 135, 139 (2007), available at
http://www.virginialawreview.org/inbrief/2007/07/09/dodson.pdf. This view of the case
finds additional support in subsequent remarks of the author of the Court’s opinion:
[I]n Bell Atlantic you had a set of allegations in which in effect it was an
either or choice. There were two possibilities consistent with the allegations
in Bell Atlantic. One was a conspiracy possibility, one was a lawful parallel
conduct possibility. And there just wasn’t any way to pick one as being a
more probable interpretation of what they were getting at.
Transcript of Oral Argument at 10, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) [hereinafter
Iqbal Transcript] (No. 07-1015) (statement of Justice Souter). Finally, this appears to be
the view of the D.C. Circuit. See Aktieselskabet AF 21. November 2001 v. Fame
Jeans,Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (“In sum, Twombly was concerned with the
plausibility of an inference of conspiracy, not with the plausibility of a claim.”).
82. Note, however, an analogous phenomenon in connection with summary
judgment, when courts have carved the evidence or the law into smaller segments in
order to make cases amenable to pretrial judicial resolution. See Burbank, supra note 21,
at 624–25 (discussing “factual carving, a process that does not require more of the whole
but sees less in the parts by subjecting the nonmovant’s ‘evidence’ to piece-by-piece
analysis,” and “legal carving, whereby the law is subdivided into smaller, more objective
units, thus ramifying the issues as to which an adequate factual showing (however
defined) must be made”).
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 119
allegations are disregarded as legal conclusions may depend on whether,
without more factual allegations, the complaint tells a story that is both
reasonably possible in light of human experience as determined by
background knowledge and, if true, would entitle the plaintiff to relief.83
Finally in this regard, as the Second Circuit’s post-Twombly opinion in
Iqbal confirms,84 judgments about plausibility, like those about cogency
or strength, are necessarily comparative.
Whether the ambiguity of the Court’s opinion in Twombly was
strategic—designed to empower the lower courts to vary requirements to
withstand a motion to dismiss85 depending on perceived differences in
procedural (i.e., discovery) demands and/or substantive contexts, with
the Court retaining the power to police egregious excesses while
preserving deniability86—remains to be seen. An alternative account is
simply that the Court’s goal of changing the Federal Rules outside of the
Enabling Act Process without admitting that it was doing so
understandably yielded a confusing opinion. We may have an answer
very soon; review of the Second Circuit’s Iqbal decision87 may force the
Court to elaborate the acceptable ways by which the requirements of
substantive law can alter general rules in operation.
The Iqbal case involves claims brought by a citizen of Pakistan
whom federal officials arrested after the 9/11 attacks and detained at the
(federal) Metropolitan Detention Center in Brooklyn, New York,
83. For a similar interpretation of Twombly, see Robert G. Bone, Twombly,
Pleading Rules and the Regulation of Court Access, 94 IOWA L. REV. (forthcoming
2009),available at http://www.bu.edu/law/faculty/scholarship/workingpapers/2008.html).
84. See Iqbal v. Hasty, 490 F.3d 143, 175–76 (2d Cir. 2007), cert. granted sub
nom. Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008); see also Makor Issues & Rights, Ltd. v.
Tellabs Inc., 513 F.3d 702, 711 (7th Cir. 2008).
85. One who accepts the view of Twombly suggested here probably should not
refer to that case as a “pleading decision” unless the intended audience would understand
that the reference was to the sufficiency of the complaint to withstand a motion under
Federal Rule 12(b)(6), as opposed to Federal Rule 12(e).
86. Editorial, The Devil in the Details, 91 JUDICATURE 52 (2007) (“More
probably, Twombly is an exercise in strategic ambiguity that empowers the lower federal
courts to tighten pleading requirements in cases or categories of cases that augur similar
discovery burdens (or are otherwise disfavored), while preserving deniability in the Court
through the use of its discretionary docket to correct perceived excesses (as in
Erickson).”). The author was Chair of the Editorial Committee of the American
Judicature Society at the time this editorial was published. The reference is to Erickson v.
Pardus, 127 S. Ct. 2197 (2007), a case decided a few weeks after Twombly (without
argument and per curiam) in which the Court reversed the United States Court of Appeals
for the Tenth Circuit’s affirmance of a judgment dismissing a prisoner’s complaint under
Federal Rule 12(b)(6). For reasons why Erickson does not provide much comfort for
those concerned that Twombly is generally applicable (not confined to antitrust cases),
see Editorial, supra. On strategic ambiguity more generally, see supra note 63.
87. Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), cert. granted sub nom. Ashcroft
v. Iqbal, 128 S. Ct. 2931 (2008).
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
120 WISCONSIN LAW REVIEW
pending trial on charges (of fraud in connection with identification
documents) to which he ultimately pleaded guilty, leading to his removal
to Pakistan. The complaint alleged that Iqbal’s arrest and seven-month
confinement in highly restrictive conditions resulted from unlawful racial
and religious discrimination. It also alleged that a number of lower-level
Federal Bureau of Investigation and Bureau of Prisons officials and
employees were liable for such violations of his rights, due to use of
excessive force, unreasonable and unnecessary strip and body-cavity
searches, and denial of medical care while in detention. Finally, Iqbal
asserted that Robert Mueller, Director of the F.B.I., and John Ashcroft,
Attorney General of the United States, adopted and/or approved policies
and directives pursuant to which he was arrested and confined, policies
and directives that were purposefully designed to discriminate on the
basis of religion and race.88
In affirming the district court’s decision denying motions to dismiss
four counts against Mueller and Ashcroft, Judge Jon Newman for a panel
of the Second Circuit sought to apply Twombly, which had been decided
less than two months earlier. He concluded:
[T]he allegation that Ashcroft and Mueller condoned and
agreed to the discrimination that the plaintiff alleges satisfies
the plausibility standard [of Twombly] without an allegation of
subsidiary facts because of the likelihood that these senior
officials would have concerned themselves with the
formulation and implementation of policies dealing with the
confinement of those arrested on federal charges in the New
York City area and designated “of high interest” in the
aftermath of 9/11.89
The Supreme Court granted the solicitor general’s petition for a writ
of certiorari.90 In its brief, the government argued that, in furtherance of
the policies underlying the defense of official immunity, the Court
should require that complaints against high-level government officials
contain “‘specific, nonconclusory factual allegations’ that establish . . .
cognizable injury.”91
88. See id. at 147–49, 165, 174–76.
89. Id. at 175–76; see also id. at 166 (“Even as to Ashcroft and Mueller, it is
plausible to believe that senior officials of the [Department of Justice] would be aware of
the policies concerning the detention of those arrested in the aftermath of 9/11 and would
know about, condone, or otherwise have personal involvement in the implementation of
those policies.”).
90. Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008).
91. Brief for Petitioners at 15, Iqbal, 128 S. Ct. 2931 (2008) (No. 07-1015)
(quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)); see id. at 28; Brief of
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 121
Particularly because Judge Newman’s opinion in Iqbal is such a
clear and (dare I say) cogent interpretation of Twombly, I can only hope
that attachment to substantive law for which the Court has been
responsible—the federal common-law defense of official immunity—
does not lead it further to deform the general pleading landscape. There
is no need for the Court to do so, although the path to a satisfactory
accommodation is not without potholes.
If substantive federal common law can displace—or, for those who
prefer the cosmetic attribution of the policy choice to Congress, if a
federal statute interpreted in light of its underlying policies can
preempt92—nonsubstantive state law in state court, surely it can also
supplant a Federal Rule of Civil Procedure in federal court. Actually, that
is not clear because of the Enabling Act’s supersession clause.93 That is
territory in which, because the clause privileges the last in time,
insistence on cosmetic attribution to Congress can cause difficulty.94
Without such attribution, however, the argument that the Court makes
law anew every time it applies judge-made law to different facts may be
an adequate postrealist response. Certainly, this argument has force when
the Court changes the content of judge-made law. The question remains
how best to implement the perceived requirements of substantive federal
Professors of Civil Procedure and Federal Practice as Amici Curiae in Support of
Respondents at 24 n.3, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (No. 07-1015)
[hereinafter Professors’ Amicus Brief] (“[T]he Government seeks to convert the Court’s
description of a discretionary judgment pertaining to what a district court might do under
Rules 7(a) and 12(e) into a mandatory heightened pleading standard under Rule
8(a)(2).”). The author contributed to, and is a signatory of, this amicus brief.
92. See, e.g., Felder v. Casey, 487 U.S. 131 (1988) (stating that a Wisconsin
state court cannot apply short Wisconsin notice-of-tclaim statute in a federal civil-rights
action); infra note 101 (discussing applicability in state court of pleading requirement
found necessary to protect federal common law of official immunity). For discussion of
Felder, including its use of the language of preemption, see Stephen B. Burbank, Federal
Judgments Law: Sources of Authority and Sources of Rules, 70 TEX L. REV. 1551, 1557–
58 (1992); see also Thomas W. Merrill, The Common Law Powers of Federal Courts, 52
U. CHI. L. REV. 1, 32–39 (1985) (noting the Court’s failure to realize that preemptive
lawmaking can be used to develop a general theory of federal common law).
93. 28 U.S.C. § 2072(b) (2006) (“All laws in conflict with such rules shall be of
no further force or effect after such rules have taken effect.”). For the origins and
purposes of the supersession clause, see Burbank, supra note 26, at 1051 n.156. For more
recent developments involving it, including the unsuccessful attempt to delete it from the
Enabling Act as part of the 1988 amendments, see Stephen B. Burbank, Hold the Corks:
A Comment on Paul Carrington’s “Substance” and “Procedure” in the Rules Enabling
Act, 1989 DUKE L.J. 1012, 1036–46.
94. Concern that the 2007 amendments designed to restyle the Federal Rules
without affecting their meaning might otherwise be given superseding effect under
section 2072(b) caused the rulemakers to include among them the following: “If any
provision in Rules 1–5.1, 6–73, or 77–86 conflicts with another law, priority in time for
the purpose of 28 U.S.C. § 2072(b) is not affected by the amendments taking effect on
December 1, 2007.” FED. R. CIV. P. 86(b).
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
122 WISCONSIN LAW REVIEW
common law without further deforming the general landscape left by
Twombly.
There can be no serious question of inadequate notice in Iqbal even
if that were a relevant question under Federal Rule 12(b)(6) (as opposed
to Federal Rule 12(e)).95 Moreover, Judge Newman’s careful analysis of
the complaint as pleaded with respect to the defendants of interest—the
attorney general and the director of the FBI—would make it difficult to
hold that a general plausibility test under Federal Rule 12(b)(6) had not
been met. To do so, indeed, seemingly would advance the argument,
absurd on its face, that the Federal Rules impose on plaintiffs generally a
more demanding standard to survive a motion to dismiss than does the
PSLRA on plaintiffs in securities-fraud cases.96 The government denies
that it is calling for the imposition of a heightened fact-pleading
requirement in cases against high-level government officials who are
entitled to the immunity defense,97 as well it might because the Court
seems to have made it impossible for the judiciary openly to impose such
a requirement other than through the Enabling Act Process.98
The Court may, however, accept the Second Circuit’s view of
Twombly as prescribing a flexible “plausibility standard,” but take a
different view of the appropriate contextual plausibility judgment than
did the lower courts in Iqbal.99 If so, the Court would thereby confirm the
95. See Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), cert. granted sub nom.
Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (“And like the Form 9 complaint approved in
Bell Atlantic, Iqbal’s complaint informs all of the defendants of the time frame and place
of the alleged violations.”); id. at 156 (linking assessment of “legal conclusions” to
whether “the defendant is given notice of the date, time, and place where the legally
vulnerable conduct occurred”); supra note 76.
96. See supra text accompanying note 78. I share the Second Circuit’s view that
the allegations that Ashcroft and Mueller were personally involved in the adoption and/or
approval of the policies and directives challenged in Iqbal tell a story that is plausible
(not unreasonable). See supra text accompanying note 89. Note that the Iqbal complaint
does not attempt to hold those individuals responsible for the quotidian abuses during
confinement that it alleges in claims against lower-level officials and employees. See
Professors’ Amicus Brief, supra note 91, at 15 (“Thus, while the complaint does charge
several individuals with ad hoc violations of the plaintiff’s rights . . . neither Ashcroft nor
Mueller is named in any of these fact-specific counts.”).
97. See, e.g., Iqbal Transcript, supra note 81, at 11 (statement of Solicitor
General Garre) (“And we’re not asking for a heightened pleading standard, Justice
Ginsburg.”); Reply Brief for Petitioners at 12, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008)
(No. 07-1015) (“Petitioners do not ask the Court to adopt any heightened pleading
standard. Rather, their position is that the lower courts failed to follow this Court’s
decisions in this area and give a ‘firm application’ of the Federal Rules.”).
98. See supra text accompanying notes 68–69.
99. Iqbal Transcript, supra note 81, at 36–37 (statement of Chief Justice
Roberts) (“Well I thought, and others may know better in connection to Bell Atlantic, but
I thought in Bell Atlantic what we said is that there’s a standard but it’s . . . affected by
the context in which the allegations are made. That was a context of a particular type of
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 123
view that Twombly is an invitation to the lower courts to make ad hoc
decisions, often reflecting buried policy choices, and in any event with
little fear of reversal because of the impotence of federal appellate
review to police discretionary decisionmaking.100
For these reasons, if the Court feels that the purposes of the official
immunity defense require even greater protection than recently
reinvigorated pleading jurisprudence provides, it should forthrightly
require fact pleading as a matter of substantive law.101 Better yet, in light
of a slow trickle of ever more troubling information about how the
previous administration fought the war on terrorism—despite an
approach to governmental secrecy that would have made former
Romanian president Nicolae Ceauşescu proud102—the Court should
affirm the Second Circuit and allow Iqbal to proceed to discovery, even
if “limited and tightly controlled.”103
antitrust violation and that affected how we would look at the complaint. And here . . .
because we’re looking at litigation involving the Attorney General and the Director of the
FBI in connection with their national security responsibilities, . . . there ought to be
greater rigor applied to our examination of the complaint.”); see id. at 43
(statement of Chief Justice Roberts) (“What you have to show is some facts, or at least
what you have to allege are some facts, showing that they knew of a policy that was
discriminatory based on ethnicity and country of origin.”).
100. Bone, supra note 29, at 327 (“Reliance on case-specific discretion might be
a sensible strategy if proceduralists today still believed, as the original Federal Rules
drafters did, that procedural design is a technical exercise largely devoid of
substantive value and best performed by trial judges. That belief, however, was
thoroughly discredited in the 1970s. The normative issues are not purely technical; they
directly implicate substantive values.”).
101. If the Court were to do so, any such requirement might be applicable in a
state-court action involving the same defense of official immunity, a scenario that is
probably only theoretically possible given the availability of removal. See supra text
accompanying notes 92–93. Cf. Brown v. W. Ry., 338 U.S. 294 (1949) (holding a strict
Georgia pleading rule was inapplicable in FELA case in Georgia state court).
Unfortunately, Twombly has prompted the proliferation of nonsense about the
circumstances when federal law displaces state law in state court under the pernicious
rubric of “reverse” or “converse” Erie. See Z.W. Julius Chen, Note, Following the
Leader: Twombly, Pleading Standards, and Procedural Uniformity, 108 COLUM. L.
REV.1431, 1443–53 (2008). Because the only sources of authority for such displacement
are the federal constitutional and statutory bases of substantive federal (including
common) law, the transsubstantive Federal Rules of Civil Procedure and cases
interpreting them are irrelevant (except perhaps as a source of inspiration for a substance-
specific rule of federal common law). See Burbank, supra note 92, at 1557–58; Stephen
B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common
Law: A General Approach, 71 CORNELL L. REV. 733, 805–10 (1986).
102. See Reinsurance Co. of Am., Inc. v. Administratia Asigurarilor de Stat, 902
F.2d 1275, 1283 (7th Cir. 1990) (Easterbrook, J., concurring) (“Under Romanian law,
anything that is not a ‘State secret’ is a ‘Service secret’ – in other words, everything is
secret.”).
103. See Iqbal v. Hasty, 490 F.3d 143, 158 (2d Cir. 2007), cert. granted sub nom.
Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008). It is useful in this regard to recall the links
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
124 WISCONSIN LAW REVIEW
Professor Miller correctly sees as part of the larger significance of
Tellabs that some of the winnowing work formerly assigned to summary
judgment is now assigned to the 12(b)(6) motion to dismiss.104 In fact,
Twombly is far more powerful evidence of that proposition because of its
striking resemblance to Matsushita Electric Industrial Co. v. Zenith
Radio Corp.,105 in which the Court was both similarly intent on policing
inferences to protect the integrity of substantive antitrust law—but at the
summary-judgment stage—and similarly ambiguous about the reach of
the power to do so outside of that substantive context. Moreover,
although Tellabs is conclusive proof, were it needed, that Congress has
learned that procedure is power, at least Congress was well positioned
institutionally to evaluate the social costs and benefits of setting a high
bar for complaints filed without benefit of formal discovery, and its task
in doing so was circumscribed by the social policies germane to the
domain of substantive securities law.
The Twombly Court, by contrast, was not well positioned
institutionally to evaluate even the procedural costs and benefits of
tightening the pleading screws on plaintiffs, even in the isolated
substantive-law context involved in the case.106 The Court acting as such
between the Progressives’ project of regulatory “legibility” and the impulses that led to
broad discovery under the Federal Rules. See Burbank, supra note 21, at 597–98 n.20
(discussing Edson Sunderland, a Progressive who was the chief architect of the discovery
rules); Ken I. Kersch, The Reconstruction of Constitutional Privacy Rights and the New
American State, in 16 STUDIES IN AMERICAN POLITICAL DEVELOPMENT 61 (2002).
104. See Miller, supra note 2, at [126] (“Tellabs is an interpretation of the
standards governing a motion to dismiss under Rule 12(b)(6). But when one examines
how that motion is actually adjudicated in securities fraud cases, it becomes evident that
the hydraulic pressures of the PSLRA’s pleading rules have deformed the 12(b)(6)
motion and converted it into something different—a sort of hybrid between the motion to
dismiss and the motion for summary judgment.”).
105. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574
(1986); Burbank, supra note 20, at 623 (“The contradictions and studied ambiguity of
two decisions in the trilogy, each of which was responsive to the perceived requirements
of a particular substantive context and might well have been so confined but for the fetish
of transsubstantive procedure, provide support for very different approaches to Rule
56.”). As Justice Stevens’s powerful dissent in Twombly points out, granting authority to
police inferences at the pleading stage represents a major change, because it may lead to
the termination of cases before plaintiffs have had any discovery at all. See Bell Atl.
Corp. v. Twombly, 1927 S. Ct. 1955, 1982 (2007) (Stevens, J., dissenting).
106. On the theoretical and practical differences between making law by
decision versus by Federal Rule, see generally Burbank, Of Rules and Discretion, supra
note 29, at 698–713; see also Burbank, supra note 26, at 1147–57, 1192–93; Burbank,
supra note 93, at 1021. Judge Posner is correct that “[r]ight or wrong, the decision in Bell
Atlantic was pragmatic rather than legalist.” RICHARD A. POSNER, HOW JUDGES THINK 54
(2008). Yet, there can be no doubt that consideration of a number of the policy questions
presented by Twombly would have benefited from the fruits of empirical research, even if
only research whose results had already been published. Consider in that regard the
Court’s discussion of the costs of discovery, which, eschewing any reference to
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 125
under Article III was even less well positioned to estimate the procedural
costs and benefits of a general rule of plausible pleading (if that is what
Twombly gives us), let alone the nonprocedural costs and benefits of such
a rule, substance specific or general.107 Yet, the Article III process may
have been all that the Court thought was available since the justices
likely knew through the chief justice that changing pleading
requirements through the Enabling Act Process had been considered and
abandoned as political dynamite on more than one occasion, including in
the recent past.108
CONCLUSION
Twombly’s most obvious and immediate consequence has been
enormous confusion and resulting transaction costs as a result of
uncertainty about the requirements it imposes and its scope of
application. Apart from those costs, and whether or not Twombly was an
exercise in strategic ambiguity, it is an invitation to the lower federal
courts to screen out complaints in disfavored classes of cases, whether
they are disfavored because of their perceived discovery burdens or for
some other reason. I am reminded of observations I made about
systematic as opposed to anecdotal data, relied to a great extent on an article by Judge
Easterbrook that is heavy on theory and light on facts. See Twombly, 127 S. Ct. at 1967 &
n.6 (citing Frank Easterbrook, Discovery as Abuse, 69 B.U. L. REV. 635, 638–39 (1989)).
Not only was that article’s analysis predicated on a law-and-economics model of so-
called impositional discovery; it was published in 1989, before substantial changes to the
discovery rules in 1993, 2000, and 2006—changes that the Twombly Court ignored. I am
reminded of an observation I made about the Seventh Circuit’s attempt to turn Federal
Rule 11 into a “fee-shifting statute”: “Theory is an irresponsible basis for lawmaking
about something as important as access to court, and it is especially irresponsible when
the lawmaking involves judicial amendment of a Rule . . . .” Burbank, Transformation,
supra note 29, at 1947–48.
There can similarly be no doubt that, quite apart from systematic empirical
research, consideration of many of the policy questions implicated in Twombly would
have benefited from a base of experience with first-instance litigation broader than that
possessed by the members of the Supreme Court, almost all of which predates Justice
Stevens’s appointment in 1975.
107. Bone, supra note 83, at 86 (“Whatever screening approach is adopted,
however, two general points should guide its design. First, the project should be handled
by formal rulemaking or the legislative process, not by the common law method of case-
by-case interpretation of the Federal Rules. Because it requires a controversial choice of
normative metric and a coordinated analysis of different rule options, this project is most
suitable for a process open to public input, able to generate and properly consider
relevant empirical information, and capable of addressing the issues from a global and
systemic perspective. Second, because the screening approach should be tailored to the
types of cases that involve meritless filings most seriously, any set of rules should be
substance-specific.”).
108. See Editorial, supra note 86.
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
126 WISCONSIN LAW REVIEW
experience under the 1983 amendments to Federal Rule 11. Having
suggested that those amendments “signall[ed] a more candid recognition
that different cases may have different requirements,” I raised the
question “whether and when the only or the best answer to that
perception lies in reliance on the discretion of judges, guided by general
directions that usually are not informed by empirical study, to deliver on
the promise of equal justice.”109
Perhaps the most troublesome possible consequence of Twombly is
that it will deny court access to those who, although they have
meritorious claims, cannot satisfy its requirements either because they
lack the resources to engage in extensive prefiling investigation or
because of informational asymmetries. As Judge Richard Nygaard stated
in Phillips v. Allegheny,110 “Few issues in civil procedure jurisprudence
are more significant than pleading standards, which are the key that
opens access to courts.” More generally, Twombly is but the most recent
signal of a retreat from the goal of adjudication on the merits, a retreat
that has already seen the trial-termination rate decline precipitously, to
the point that it is a quarter or less of the termination rate by summary
judgment.111
Ultimately, of course, Twombly raises the question whether our
society remains committed to private litigation as a means of securing
compensation for injury and enforcing important social norms. From that
perspective, another important policy issue it raises is whether, if we
retreated from that commitment, we would provide alternatives such as
social insurance and administrative enforcement.112 In addressing that
question, decisionmakers presumably would benefit from information
about experience in other countries that did not previously share our
commitment to private litigation, that have provided alternatives, but that
are now rethinking the best way to achieve their societal goals. It is
interesting, if not ironic, that a number of such countries have decided,
among other reforms, to relax bans on contingent-fee litigation and to
experiment with group and other forms of aggregate litigation.113 In any
event, from this perspective, it is again apparent that the policy questions
are not the sort that should be answered by nine judges in the exercise of
109. Burbank, Transformation, supra note 29, at 1936–37.
110. Phillips v. Allegheny, 515 F.3d 224 (3d Cir. 2008).
111. See Burbank, supra note 20, at 616–18.
112. See generally ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN
WAY OF LAW (2001).
113. See, e.g., CHRISTOPHER HODGES, THE REFORM OF CLASS AND
REPRESENTATIVE ACTIONS IN EUROPEAN LEGAL SYSTEMS: A NEW FRAMEWORK FOR
COLLECTIVE REDRESS IN EUROPE (2008); Stephen B. Burbank, The Roles of Litigation, 80
WASH. U. L.Q. 705, 710–11 (2002) (describing the United Kingdom’s change of position
regarding “litigation on spec,” as a direct result of cuts in the legal aid budget).
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 127
Article III judicial power, with little information, less experience, and no
power to implement nonlitigation alternatives.
Even if the Court finds a way to decide Iqbal without engendering
additional confusion and damage to the policies of access to court,
compensation for injury, and norm enforcement—and unless it issues a
palinode114 retracting all but the narrow holding in Twombly115—the
latter decision should remain cause for serious concern. We see in it
some of the costs of the foundational assumptions and operating
principles of modern American procedure.
Now that even Congress has learned how to use procedure, openly
or not, to advance substantive goals, greater attention naturally focuses
on choices made by those responsible for crafting and interpreting
procedural rules, wherever they sit. Yet, the foundational assumption that
the Enabling Act requires transsubstantive rules is thought to prevent use
of its process when a particular substantive context requires a different
procedural rule, while the judiciary’s refusal to acknowledge that
statutory procedure is legitimate prevents it from taking the initiative in
seeking a legislative fix.116 As a result, courts struggle to make a
substance-specific solution fit within the general rule or to change the
general rule without admitting that they are doing so. The tendency of
the first tactic is to yield a nonoptimal solution for the particular
substantive context. The tendency of the second is to yield a nonoptimal
solution for all substantive contexts.
More generally, Twombly provides additional evidence of the costs
of complexity in modern American procedure.117 We know that elites
have had, and still have today, enormous influence in determining the
content of law, and that legal elites have had, and still have today,
enormous influence in determining the content of that special form of
114. This word denotes a poem in which the poet retracts something said in a
previous poem or, more generally, any formal retraction. See AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE 944 (1973). Its allure in, and aptness given, our
recent political circumstances should be apparent.
115. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1963 (2007) (“We granted
certiorari to address the proper standard for pleading an antitrust conspiracy through
allegations of parallel conduct . . . .”).
116. Note the recent exception in amendments to Federal Rule of Evidence 502,
proposed as legislation by the judiciary and enacted by Congress. See Pub. L. No. 110-
322, 122 Stat. 3537 (2008); S. REP. NO. 110-264, at 4 (2008), available at
http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=110_cong_reports&docid=f:s
r264.110.pdf (“On December 11, 2007, Chairman Leahy introduced S. 2450,
incorporating the language proposed by the Judicial Conference’s Advisory
Committee.”). Because, however, the amendments govern attorney-client privilege, the
judiciary had no choice by reason of the Enabling Act’s requirement that any “rule
creating, abolishing, or modifying an evidentiary privilege shall have no force or effect
unless approved by Act of Congress.” 28 U.S.C. § 2074(b) (2006).
117. See Burbank, supra note 40; Burbank, supra note 65.
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
128 WISCONSIN LAW REVIEW
prospective law that we call the Federal Rules. By reason of foundational
assumptions and operating principles, the rules they secure for the high-
stakes, complex cases that are their special concern become the rules for
all litigation in federal court.118 The Cadillac process they enshrine helps
to drive out of federal court those who can afford only a Ford.119
Moreover, to the extent states continue to use the Federal Rules as a
model for their courts,120 the result may be to make courts in general
unavailable for the resolution of everyday disputes.
The Federal Rules necessarily confer substantial discretion on
Article III judges. The discretion they confer entails the power to make
policy choices that, although they may be buried in the obscurity of
technical language, are increasingly likely to be exposed by those who
have come to recognize the power of procedure, often in recent years
aided by systematic empirical data.121 Growing awareness that questions
of “mere procedure” may implicate important social policy encourages
those who cannot make an independent judgment to have only so much
118. See Burbank, supra note 113, at 711 (“The misguided approach to
procedural reform that treats all litigation as if it were complex litigation can at least be
explained, if not justified, by the quest for uniform and transsubstantive regulation that
has preoccupied American procedural policy.”).
119. See Joseph, supra note 40; Maurice Rosenberg, The Federal Rules After
Half a Century, 36 ME. L. REV. 243, 249 (1984). I am here taking a point made by
Professor Hadfield one step further, or perhaps one step back. She has argued that
through a market allocation of lawyers that favors corporate clients over individual
clients, the legal system establishes governing the economy as the principal role of the
justice system. See Gillian K. Hadfield, The Price of Law: How the Market for Lawyers
Distorts the Justice System, 98 MICH. L. REV. 953, 1000 (2000). My point is that, in
addition to favoring jurisdictional rules that have privileged business throughout most of
our history, see supra text accompanying notes 40–41, the federal judiciary has created a
procedural system so complex that most litigants who can satisfy federal jurisdictional
requirements cannot afford to litigate in federal court.
120. See John B. Oakley, A Fresh Look at the Federal Rules in State Courts, 3
NEV. L.J. 354 (2002) (updating a 1986 study of the extent of state adoption of the Federal
Rules). The borrowing is especially problematic to the extent that state court judges are
under greater docket and resource pressures than their federal colleagues, depriving them
of the ability to use the tools in the Federal Rules for managing litigation.
121. See Phyllis Tropper Baumann, Judith Olans Brown & Stephen N. Subrin,
Substance in the Shadow of Procedure:Tthe Integration of Substantive and Procedural
Law in Title VII Cases, 33 B.C.L.REV. 211 (1992); Stephen B. Burbank, Procedure,
Politics and Power, 52 J. LEGAL EDUC. 342, 344 (2002) (“For, when one knows that a
rule has a statistically significant differential impact on a class of litigants or in a
particular type of case, the veil is lifted, the myth of neutrality as to litigant power is
exploded, and the question of lawmaking power to address the situation is unavoidable. It
may not be a coincidence, therefore, that the heightened attention to questions of
rulemaking power in the past ten years has come during a period of unprecedented
attention to empirical investigation of the real-world effects of rules by the rulemakers.”);
supra note 32 (discussing inappropriateness of a “veil of ignorance” as a normative
posture for rule makers).
BURBANK ILEP - PROOF ISSRN (2).DOC 3/12/2009 11:36 AM
200x:nnn The Dilemmas of “General Rules” 129
confidence in the integrity of the process and the quality of the legal
products it produces as they do in the actors who control it. In an age
when politicians, interest groups and the media find it convenient to
represent that courts are part not only of the political process, but of
ordinary politics, and that judges should be viewed as the policy agents
of those who appoint or elect them,122 that is not good news.
122. See Stephen B. Burbank, Judicial Independence, Judicial Accountability,
and Interbranch Relations, 95 GEO. L.J. 909, 910 (2007) (discussing attacks on courts
that implement strategies reflecting theory of judicial agency and that are designed “to
create and sustain an impression of judges that makes courts fodder for electoral
politics”).
