This note traces the history of pleading in the United States from the adoption of the Federal Rules in 1938 through the Twombly and Erickson decisions in the summer of 2007. Specifically, this note examines the Twombly decision and its effects on the trend the Supreme Court has established over the last half-century concerning the notice pleading standard of Rule 8(a)(2). This note also suggests that the Twombly Court effectively created a heightened pleading standard for antitrust cases, even though it specifically denied doing so. I then analyze the Erickson decision and how the timing and direct nature of Erickson suggests that the Court's decision in Twombly does not extend beyond Twombly itself. Ultimately this note argues that while Twombly departed from the modern trend of simple notice pleading in response to concerns with the ever-increasing costs of discovery in federal litigation, Erickson demonstrates the Court's desire to isolate Twombly as an outlier and reinforce the modern trend in which Rule 8(a)(2) does not require a heightened pleading standard.
Jerermy D. Kerman,
Righting the Notice Pleading Ship: How Erickson v. Pardus Solidifies the Modern Supreme Court Trend of Notice-Giving in Light of Bell Atlantic Corporation v. Twombly,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol84/iss2/12