December 2010 Vol. 109 No. 3 THE REVIEW

Pleading with Congress to Resist the Urge to Overrule Twombly and Iqbal

Michael R. Huston

 

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court changed the rhetoric of the federal pleading system. Those decisions have been decried by members of the bar, scholars, and legislators as judicial activism and a rewriting of the Federal Rules of Civil Procedure. Such criticism has led members of both houses of Congress to introduce legislation to overrule the decisions and return to some variation of the "notice pleading" regime that existed before Twombly. This Note argues that both of the current proposals to overrule Twombly and Iqbal should be rejected. Although the bills take different approaches to their goal of overruling Twombly and Iqbal, each one would disrupt the careful balance of interests created by the Federal Rules and create intolerable confusion for judges ruling on the often-filed 12(b)(6) motion to dismiss. Especially because the long-term effects of Twombly and Iqbal on federal pleading remain unclear, Congress should avoid a rush to judgment on this important issue.

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