Legal Commentary

Jon Siegel (guesting at CoOp) has a couple good posts up about Iqbal, including the way it is seeping into very rudimentary tort claims (such as slip-and-fall) that really should be covered by Form 11. Jon makes the following point, which I think is true:

The Civil Procedure professor community, including myself, is, I think, biased in favor of the traditional answer (that strict pleading requirements end up costing more than they save) because that?s what we?ve been teaching the students for the last 70 years.

But this raises in my mind an interesting pedagogical point. Right now, we are in a state of flux. The pleading rules we taught to members of the class of 2009 when they were 1Ls (fall 2006/spring 2007) are different (perhaps radically so) than what that cohort is walking into on the Bar Exam and practice in fall 2009. We taught that Conley controlled and Swerkiewicz and Leatherman threw an exclamation point on that, although district courts exercised some discretion to ratchet up the pleading requirements in certain cases (as much pre-Twombly scholarship has shown). We were teaching students that way in part because that is what we had been taught (throughout the past 70 years) and in part because that reflected the state of the law (roughly anyway). And for now, the (at least my) teaching approach remains: "This is how it was for 70 years, Twombly and Iqbal changed it (legitimately or otherwise, for good or ill), and we are trying to figure out where we are and how this all shakes out."

But at what point do we stop talking about what came before? When do we change the approach to "This is how it is"? At what point is Twombly/Iqbal simply the law of pleading, with Conley (and Swerkiewicz and Leatherman) reduced to historical footnotes as an "alternative approach" to pleading that is not the prevailing federal approach?