Notice Pleading’s Quiet Return

Fifteen years ago, the Supreme Court announced two significant civil procedure decisions – <i>Bell Atlantic Corp. v. Twombly</i>, 550 U.S. 544 (2007), and <i>Ashcroft v. Iqbal</i>, 556 U.S. 662 (2009). Together, Iqbal and Twombly marked a new approach to pleading in federal courts. No longer would courts apply the forgiving notice pleading standard, in force since the 1938 adoption of the Federal Rules of Civil Procedure. In its place, the Court introduced plausibility pleading, inviting district courts to apply their “judicial experience and common sense” to decide whether a claim was “plausible.” <br><br>Commentators expressed alarm, predicting that the new standard would lead to premature termination of claims in federal court, with plaintiffs unable to obtain the discovery necessary to show the viability of their claims at the threshold pleading stage. And to some degree empirical data suggest that those concerns were merited. But as this Article demonstrates, matters have been different in the Supreme Court, where the Justices have shown little appetite for their own new pleading standard. Indeed, as demonstrated by a close review of the opinions, briefing, and oral argument in cases implicating pleading since the Court decided Iqbal, notice pleading principles still govern the Court’s resolution of pleading disputes. As elaborated in further detail in this Article, lower courts, the advocates who appear before them, and the rulemakers who must consider future changes to transsubstantive doctrine should take note, rather than reflexively apply a heightened pleading standard thought to have been created by the Court in <i>Iqbal </i>and <i>Twombly</i>.&nbsp;