Michael S. Pardo (University of Alabama School of Law) has a new SSRN post on pleading standards: Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation, Boston College Law Review, Forthcoming/University of Alabama Public Law Research Paper. Here is the abstract:
The Supreme Court’s recent pleadings decisions – Bell Atlantic 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. With the latter devices, an unclear “reasonable jury” standard has likewise failed to guide judicial applications in a principled manner and has lead to criticisms that the unconstrained power it gives judges to terminate lawsuits has lead to normatively problematic consequences. The scholarly debates regarding pleadings – like the debates regarding summary judgment and judgment as a matter of law – have revolved around a tension between the related concerns for access to courts, participation values, jury rights, and the risk of eliminating meritorious lawsuits, on one hand, and the concerns for efficiency, in terrorem settlements, and meritless lawsuits, on the other hand.
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. I argue that the standards for each device depend on the underlying proof process and understanding the requirements of that process is integral for understanding the devices and providing content to their standards. I introduce a theory of “procedural accuracy” that explains, clarifies, and provides content to the standards for each device by illustrating how each device serves an alignment function: i.e., they align (or ought to align) outcomes with the requirements of the proof rules. I also explain how the theory fits and explains important aspects of the doctrine for each device. Finally, and most importantly, I defend the theory and the standards it provides as normatively desirable in light of procedural values that underlie the system of civil litigation as a whole.