The U.S. Supreme Court’s recent pleadings decisions—Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal—have injected considerable chaos into the system of civil litigation. The decisions impose an uncertain “plausibility” requirement and appear to endorse an increased power of district courts to dismiss complaints—a power that may be employed in an unprincipled, normatively problematic manner. The current pleading issues resemble similar issues that have arisen with summary judgment and judgment as a matter of law. This Article argues that there has been a significant failure at both the doctrinal and theoretical levels to relate these three procedural devices to the evidentiary proof process in particular and the system of civil litigation as a whole. It introduces a theory of “procedural accuracy” that explains, clarifies, and provides content to the standards for each device, explains how the theory fits, and explains important aspects of the doctrine for each device. Finally, and most importantly, I defend the theory and its standards as normatively desirable in light of procedural values that underlie the system of civil litigation as a whole.
Michael S. Pardo, Pleadings, Proof, and Judgment: A Unifed Theory of Civil Litigation, 51 B.C.L. Rev. 1451 (2010), https://lawdigitalcommons.bc.edu/bclr/vol51/iss5/3