Can Speech Act Theory Save Notice Pleading?

Susan E. Provenzano*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

Countless scholars have debated-and lower courts have attempted to apply-the plausibility pleading regime that the Supreme Court introduced in Twombly and Iqbal. Iqbal took Twombly's requirement that a complaint plead plausibly and turned it into a two-step test. Under that test, the life or death of a lawsuit rests on the distinction between "well-pleaded" and "conclusory" allegations. Only the former are assumed true on a motion to dismiss. Seven decades of pleading precedent had taken a sensible, if unstable, approach to the truth assumption, making a single cut between factual contentions (assumed true) and legal conclusions (ignored). But Iqbal redrew those lines. It treats as legal conclusions an entire subset of factual allegations and does so whenever, in the Court's view, those facts are presented too generally or too rhetorically. To date, the contours of "conclusory" have not been pinned down by legal-theoretic approaches, while lower court reactions range from conflicting to confused to avoidant. It is clearer than ever that Iqbal left an analytical void in the wake of its novel pleading inquiry-a void that must be filled in a stable way while recognizing the FRCP's normative commitments.

Original languageEnglish (US)
Pages (from-to)1157-1219
Number of pages63
JournalIndiana Law Journal
Volume96
Issue number4
StatePublished - 2021

ASJC Scopus subject areas

  • Law

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