October 2009 Vol. 108 No. 1 THE REVIEW

Understanding Pleading Doctrine

A. Benjamin Spencer

Where does pleading doctrine, at the federal level, stand today? The Supreme Court’s revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show “plausible entitlement to relief” by offering enough facts “to raise a right to relief above the speculative level.” Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in a way that gives it some of the clarity and precision it otherwise lacks. The major descriptive thesis posited here is that the central animating principle of contemporary pleading doctrine is the requirement that a complaint—through the use of objective facts and supported implications—describe events about which there is a presumption of impropriety. Getting to that presumption requires different degrees of factual specificity depending on the factual and legal context of the claim. A secondary descriptive claim is that the doctrine in its current iteration privileges efficiency interests over the justice-related concerns of accuracy and procedural fairness. Unfortunately, this preference unduly harms the right of access to courts for those plaintiffs having claims that require the pleading of information they do not or cannot know. Further, it may be that certain types of claims, such as civil rights and antitrust claims, are more disadvantaged by this preference than others, suggesting that the doctrine needs to be recalibrated to better serve the interests of justice more evenly across different types of cases.

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