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Notre Dame Law Review

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notice pleading, activism, federal rules, Robert's court


Civil Procedure | Jurisprudence | Law


In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court reinterpreted the Federal Rules of Civil Procedure to permit judges to dismiss claims at the very outset of a case whenever they think the claims are implausible. The decisions have been extremely controversial, and they are already on track to become the most cited Supreme Court decisions of all time. Critics contend that the decisions are prime examples of the “conservative judicial activism” widely attributed to the Roberts Court. In particular, critics contend that the decisions circumvented the usual process for promulgating amendments to the Federal Rules in order to revolutionize federal adjudication for the benefit of corporate defendants. Although I agree with some of this criticism, I think some of it is overstated. As I explain in this essay, these decisions are, at best, only weak examples of activism. Moreover, the decisions are unlikely to cause any revolution in pleading standards because this revolution was fought and won in the lower courts long ago. Finally, even if the methods were not pure, the motives behind the revolution have been: the balance of power between plaintiffs and corporate defendants needed to be recast in light of the exponential increase in the nuisance value of discovery — especially e-discovery — that has arisen since the Federal Rules were written in 1938. I conclude, however, that elevated pleading standards may not be the best mechanism to rebalance power, and that fee-shifting rules ought to be considered instead.



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