A Closer Look at New Pleading in the Litigation Marketplace
99:2 Judicature 11 (Autumn 2015)
11 Pages Posted: 23 Mar 2015 Last revised: 26 Aug 2015
Date Written: November 21, 2013
Abstract
In this essay derived from a lecture delivered at the University of Genoa in 2013, I situate the New Pleading regime of Twombly and Iqbal in the American litigation marketplace. Courts and parties are undoubtedly affected by New Pleading. But, as rational actors, they also are responsive to it. Their responsive behaviors both mitigate the expected effects of New Pleading and cause unintended effects. Assessing New Pleading requires understanding and consideration of these market forces and reactive implications.
Keywords: pleading, Twombly, Iqbal, Twiqbal, FJC, Rule 8, plausibility
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