American and Canadian Perspectives on Pleadings

Adam Steinman (University of Cincinnati – College of Law) has a new article on SSRN entitled: The Pleading Problem , U of Cincinnati Public Law Research Paper No. 09-10. Here is the abstract:
Federal pleading standards are in crisis. The Supreme Court’s recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This article provides that theory. It develops a new paradigm – plain pleading – as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference. Moreover, it is able to reconcile Twombly and Iqbal with pre-Twombly authority.

See also, the excellent blog post by Trey Childress, Pleading Alien Tort Statute Cases in the US: Heightened Pleading in International Cases over at conflictoflaws.net.

For a Canadian perspective on pleading practice and procedure, see, Trevor C.W. Farrow, “Five Pleadings Cases Everyone Should Read”, (2009) 35 Adv. Q. 466 (July 2009, No.4) (available by subscription only: http://www.canadalawbook.ca/catalogue.cfm?DSP=Detail&ProductID=436).

Antonin I. Pribetic

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