Legal Commentary

Much bandwidth and ink (see Scott's bibliography) has been spilled on the question of what Bell Atlantic v. Twombly means, what it does to pleading under the Federal Rules of Civil Procedure, and what to tell our students about it in Civ Pro.

I want to see what people think on a slightly different point: What is the best way to teach the complaint portion of pleading with Twombly in the mix. I use Marcus, Redish, and Sherman, and pre-Twombly, I went as follows: Conley v. Gibson, Joinder of Claims/Parties, Rule 12 motions (to see how challenges to complaints came up), Rule 11 sanctions, Rule 9(b) heightened pleading of fraud and civil rights, then Swierkiewicz v. Sorema">Swierkiewicz v. Sorema (pleading of civil rights claims). And I chose this framework (with some modification) because that is how one of the casebook authors did it and (except for joinder) follows the order in the book. This year, I just tacked Twombly after Swierkiewicz under the sub-heading "The Uncertain Future of Notice Pleading."

But I do not think I like that order. Because we did not hit Twombly until several weeks after Conley, students did not see how the three main Supreme Court pleading cases all fit together with one another. So I need to come up with a different progression, one that allows us to read the three in close proximity. But here are three concerns that, I think, limit the order of presentation:

1) Students cannot understand Twombly (and what it did or did not do to the pleading rules) without reading Conley and Swierkiewicz.

2) Students cannot understand Swierkiewicz without having had a taste of heightened pleading under Rule 9(b) and its distinction from notice pleading.

3) So we cannot start with Twombly, even though it looks like the new starting point for pleading analysis.

4) Students cannot understand the discussion of whether a complaint is "sufficient" without some discussion of Rule 12 defenses, especially 12(b)(6) failure to state a claim and the difference between legal and factual sufficiency.

5) Students need some introduction to Rule 11 and pleading on reasonable information and belief to understand Twombly (since the plaintiffs there did try to plead an agreement not to compete, on information and beliefe.

So what is a good order of coverage? One possibility I have been toying with would be as follows:

1) General introduction to Rule 8(a) and the contents of the complaint.

2) Rule 12(b) motions.

3) The factual detail of the complaint: Conley, Rule 11, Heightened Pleading, civil rights pleading/Swierkiewicz, and Twombly.

4) Joinder of Claims/Parties

5) Pleading in the Alternative

Does that sound like a workable structure? What is wrong with this, pedagogically? How do other people fit these pieces together?