Although the journey from Conley to Iqbal is typically told as a story of court access gained and then lost, this period also contained a parallel and more complicated access-to-justice story.
The minimization of notice is problematic because, just like pleading, notice is also about court access. Notice presents a court-access conundrum because the procedural protections that typically bolster notice to defendants often are themselves procedural and financial court-access barriers for plaintiffs. Part I introduces the broader concept of notice as a due process right that raises thorny court-access issues.
Part II traces the more specific history of notice pleading from its introduction in the early twentieth century through its adoption as a part of Federal Rule of Civil Procedure 8 and the Conley decision. Following Conley , notice pleading was never fully realized as its own independent concept of pleading with a strong tie to a deep meaning of notice.
I then track its decline after Twombly and Iqbal. In Part III, I consider what a more fully-realized notice pleading doctrine might have been, and how returning to the concept of notice might inform or change the plausibility pleading standard going forward.
The story of pleading in the twentieth century is traditionally cast as a court-access drama. If notice pleading was open and liberal, then plausibility pleading is narrow and exclusive. To further this narrative, minimalist notice acted in service of the underdog plaintiff who lacked sufficient access to information to make the specific factual allegations that might be required under a heightened pleading standard.
The right of notice and opportunity to be heard predates the founding and the Constitution. The Supreme Court cemented notice and opportunity to be heard as a constitutional procedural due process right in Pennoyer v.
The modern due process standard for notice is flexible and relatively low. As the Supreme Court announced in Mullane v. In the decades since Mullane , the Supreme Court has added little to constitutional notice, [20] particularly the constitutional dimension of notice that is required in ordinary adversarial litigation.
Compared to other procedural issues, notice has garnered relatively little scholarly and judicial attention. One should not conclude, however, that modern notice and service practices are satisfactory or unproblematic. Rather, one might wonder why the injustices—potential and actual—of poor notice receive so little attention in comparison to other access to justice problems such as the growth of arbitration clauses, the restriction of class actions, and the diminishing scope of personal jurisdiction.
From the beginning, the problem of court access has lurked in the background of notice doctrine. Notice pits the court-access rights and privileges of plaintiffs against those of defendants. For plaintiffs, notice is a barrier to court access. It adds time and expense to a lawsuit before the plaintiff can proceed on the merits. This is why many jurisdictions including the federal courts have procedures for procuring and encouraging waiver of formal service of process. To state the obvious, there is no meaningful court access for a defendant if he does not know of a lawsuit or other pending action that might result in a binding judgment that permanently alters his rights and obligations.
The barriers go beyond mere receipt of service of process. A defendant might be personally served, but if the notice is vague, or dense, or filled with technical jargon, it is questionable whether that party has been meaningfully notified. In the same way that a pro se plaintiff does not have the same meaningful court access as a represented plaintiff, [23] an unrepresented defendant might need counsel to help make sense of a summons and complaint. A legal system that would demand the highest degree of notice—notice that actually rather than constructively reaches the defendant and communicates the relevant information to the defendant in a clear, complete, and easily comprehensible manner, would be expensive and burdensome for plaintiffs, thus worsening court access.
But in a legal system that has a relatively low threshold for notice requirements, the court-access burdens are borne by defendants who might be ill-notified of their legal predicament or fail to learn about it at all until after the entry of a default judgment. This is the court-access conundrum of notice in a nutshell. Removing barriers for plaintiffs creates stumbling blocks for defendants, while easing the notice barriers for defendants ramps up court-access costs for plaintiffs.
But prior to International Shoe [25] and Mullane , notice had, for the most part, been a defendant or recipient centered inquiry. Notice could easily have followed a similar path as personal jurisdiction post- International Shoe : a doctrine that once promised generous court access to plaintiffs, but that was warped and winnowed by decades of Supreme Court pruning. Plaintiffs should not have to face arcane and expensive procedures just to get a foot in the courthouse door.
That being said, the tacit assumption seems to have become that notice is a court-access problem for plaintiffs and not for defendants. As we shall see, this mid-century shift collided with the s revolution in federal pleading. Notice did not follow a stereotypical trajectory of a due process right that grows stronger, or at least accrues a dense doctrinal discourse, over time. And once the Court introduced the court-access interests of plaintiffs, meaningful development of notice doctrine stagnated.
Notice pleading figures prominently in the pre- Twombly and Iqbal court-access story. But the relationship between notice and pleading should not be taken for granted. The repeated use of the label had consequences for pleading doctrine and notice doctrine alike. A major innovation of the revolution in civil procedure was to simplify and liberalize the pleading rules in federal court.
In the pre- Conley era,. He traced the idea of notice pleading to the procedure in English courts as governed by the Judicature Act of , [31] and early twentieth century innovations in the Chicago municipal courts and in Michigan courts.
Scholars did not uniformly assume that the adoption of notice pleading would unquestionably lead courts away from fact pleading and its attendant problems. But it is not necessary or desirable to go to the extreme of stating what the testimony is expected to be. But, to insure the development of the real issues before trial, it would have to be supplemented. Gibson were simply citations to the Whittier piece Notice Pleading. Soon after the introduction of Rule 8 a 2 , federal courts began to evaluate pleadings with reference to the idea of notice.
Doctrinally, Dioguardi v. Durning [54] is thought to have kicked off the notice pleading era. Taylor , [59] a case about attorney work product. Justice Murphy explained that. The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial.
By deemphasizing pleadings, the Court could accentuate the importance of information to be obtained and disclosed later in the process. It was another decade before the Supreme Court announced notice pleading as a standard in an actual pleadings case. Conley v. But slowly, courts shifted from using language that emphasized the act of simplification to language that characterized notice itself as simple.
It was neither obvious nor inevitable that courts would use minimizing language rather than language that suggested openness in connection with notice pleading. Although this was a time of linguistic minimization of notice, it was not an era of minimizing the centrality of pleadings. Throughout the Conley era, courts did not unquestioningly endorse any and all pleadings. In both Leatherman v. Sorema N. By the time the Supreme Court issued its landmark Twombly decision, two patterns in pleading jurisprudence had become evident.
First, a non-trivial number of lawyers, commentators, and lower court judges exhibited varying levels of discomfort with the Conley standard as it was generally interpreted. Although the criticisms were not completely uniform, there was some consensus among the Conley critics that the current pleading standard was too open and liberal, and that judges were not deploying motions to dismiss aggressively enough to screen out particularly speculative or meritless cases.
On the other side, proponents of liberal pleading tightened their grip around the most open and liberal formulation of the pleading standard, pointing repeatedly to the Leatherman and Swierkiewicz rebuke of lower court rebellions against liberal pleading. An opportunistic Supreme Court was in a position to fill it by using the phrase to redefine the standard in a heightened manner.
Or it could quietly dispose of the term altogether. What follows is an account of what happened to notice pleading in Twombly and Iqbal and a reflection of how the whole notice pleading story itself has affected both notice and pleading. What happened to notice pleading in Twombly? But it is plausible [91] to read this passage as an attempt to preserve notice pleading, or at least present the illusion that the Court intended for some semblance of liberal and open pleading to survive Twombly.
Justice Souter could assure the reader that the Court had not abandoned notice pleading. Notice pleading, then, was an empty vessel that allowed for continuity with the past.
Iqbal then confirmed the emptiness, if not the irrelevance, of notice pleading. Justice Kennedy did not explicitly reject notice pleading or retire the term with any fanfare. It was simply absent from the entirety of the majority opinion. Notice pleading added little to this endeavor. Justice Souter, in his Iqbal dissent, clung to the idea that notice pleading was a meaningfully distinct doctrine that could exist apart from and alongside the plausibility standard that he announced in Twombly.
He tried to reconcile his own opinion in Twombly with the earlier Conley regime and the expanded plausibility standard in Iqbal. There is some disagreement among the lower courts about whether notice pleading survived the Twiqbal revolution.
Many judges did not immediately abandon notice pleading after Iqbal. For the most part the decisions that continue to use the term notice pleading do so in a manner consistent with pre-Twiqbal opinions. Some courts maintain that notice pleading is still a viable concept. Twombly and Erickson together. While this might look like a circuit split, the reality is that the disagreement concerns whether and how the term can be repurposed. This Essay primarily concerns pleading, and thus is not the forum for an extended discussion of the due process dimensions of notice in its own right.
The minimization of notice in the name of jealously guarding court access occurred alongside a general practice of subordinating notice to other procedural rights and interests. Concerns about the scope of personal jurisdiction, the enforcement of arbitration clauses, and a host of other procedural issues have dominated the discourse.
Meanwhile, questions about how suboptimal notice practices might prejudice the rights and interests of defendants—many of whom might actually belong to vulnerable populations—have been subordinated to other procedural concerns, either out of passive disregard, or out of an active fear that paying too much attention to notice will jeopardize the ability of most litigants to vindicate their rights in public tribunals.
I have written elsewhere that we need not accept this court-access conundrum as a settled state of affairs. For purposes of this Essay, it is enough to hold pleading up as an unlikely but very real example of how a procedural doctrine—somewhat distant from the mechanics of service of process—can impact the Fourteenth Amendment discourse about notice.
As this Essay has shown, the concept of notice pleading was a relatively late-breaking phenomenon in the long history of pleading doctrines and practice, and it did not even garner the full-throated support of rules-drafter Charles Clark himself.
Even in its heyday, notice pleading was more of a moniker or label than a fully realized legal concept. Critics of that standard saw it as such a low bar that it effectively permitted all but the most outrageously implausible complaints to make it past a motion to dismiss. As we saw, it only took two years after the introduction of plausibility pleading for the Supreme Court to quietly drop notice pleading from its pleading discourse.
Given that plausibility pleading has now been with us for over a decade, it is unlikely that the Court would turn back the clock to try notice pleading, but this time, take it seriously as a pleading standard. It would be doctrinally awkward although not impossible to retract the test announced in Twombly and clarified in Iqbal. Still, one might wonder what might have happened if courts had invested more in developing the scope and definition of notice pleading.
One possibility is that a meatier although still presumably liberal and open standard might have staved off the strawman construction of Conley as an intolerably low standard. Another is that the Twiqbal revolution was inevitable, but it might have consisted of an insistence on refining or tightening the scope of notice pleading, rather than turning to the entirely new paradigm of plausibility pleading.
We will never know what might have resulted from this counterfactual world. Recall that notice pleading emerged as a response to two distinct pleading problems from the pre era of civil procedure. The first was difficulty that resulted from the hypertechnicalities of earlier pleading regimes which had the effect of barring a number of otherwise completely meritorious actions simply because the parties had failed to conform to any number of the byzantine niceties required by a complex set of rules.
Notice pleading was meant to cure the first problem by introducing a simple and mostly transsubstantive standard to replace the arcane rules of pleading regimes past. And it was meant to solve the second problem by assuming that pleading need only take care of the most basic sorting. What, then, does notice have to do with either of these problems?
Notice does little work with regard to the first problem. It simplified pleading regimes in virtue of its potential for universal application and relatively uniform nature, but this could be true of any number of other standards besides notice. But notice might actually really matter to the sorting problem. By shifting the meritoriousness problem away from pleading and into discovery and later stages of litigation, notice pleading transformed pleadings from a mostly technical and bureaucratic affair to an adversarial affair.
Notice pleading did not assume that courts would no longer sort meritorious from nonmeritorious claims to the extent that this had even been a reality in the prior regimes. The pleading and concomitant motion to dismiss itself was not intended to be the primary site of sorting.
Instead, pleading should be designed to facilitate sorting. And notice, if taken seriously, might facilitate the sorting of meritorious actions. What follows is a brief sketch of what might have been the tenets of a fortified notice pleading regime; that is, a regime in which notice pleading would be a liberal standard that enables court access, but is also tied to the belief that sorting would occur at some early post-complaint stage of a lawsuit.
The three central tenets of a notice pleading regime are: 1 specification of the pleading audience, 2 recognizing the centrality of legal sufficiency, and 3 the subjectivity of factual sufficiency and accounting for informational asymmetries. Specification of the Pleading Audience. The idea of notice is inherently dialogic; that is, it contemplates that the pleading is a document that communicates something to an intended audience.
Prior to notice pleading, the court or judge or chancellor had been the assumed audience for a pleading, standing in for the public or world at large. It was not that the defendant was unimportant, it was simply the case that a pleading was meant to communicate certain information regardless of the particular identity of the recipient. The emphasis was on conformity with a given set of procedures rather than communication of information.
Notice pleading seemed poised to replace the generality of conformity with formal requirements with the specificity of communication to a designated audience. As Part II demonstrates, the early rhetoric around notice pleading stressed that the defendant was the intended audience of a pleading. The notice feature of pleading was presumably additive to the earlier assumptions about the centrality of courts and judges.
Thus, pleadings are meant to communicate relevant information both to the defendant in particular and to the public in general, as embodied by the court. This variation, in turn, would be smoothed out later on in litigation via factual development and merits determinations.
The Centrality of Legal Sufficiency. A notice pleading regime would center legal sufficiency. But the question of whether a given set of facts amount to a cognizable claim is key. It is hardly novel to recognize the procedural benefits of an early determination of whether there is law under which a plaintiff may be entitled to relief.
Perhaps it is because this feature of pleading is so obvious and undisputed that it is simply taken for granted. Legal sufficiency is connected to both audiences of notice pleading. Notice pleading recognizes that a pleading should communicate to the court what sort of lawsuit to expect and communicate to the defendant how it should prepare.
Defining the legal parameters of a lawsuit is not identical to screening cases with some sort of goal of prognostication as to its merits. Although notice pleading centers legal sufficiency, it does not exclude the dimension of fact pleading. But because notice pleading centers adverse parties as a distinct audience, rather than limiting the audience to a disconnected public, notice pleading will not treat all facts equally. The plaintiff need not be charged with notifying the defendant in detail about facts already within its possession, or facts to which the defendant has cheaper or easier access than the plaintiff.
The key feature of notice pleading, then, is that it accounts for information asymmetries, but does not reify them in a way that disadvantages either plaintiffs or defendants. A stronger notice pleading regime would have protected vulnerable plaintiffs who could not reasonably be expected to notify a defendant of its own hidden conduct.
But it also would have engaged more with the question of whether the inferences alleged from the stated facts really notified the defendants of the factual and legal situations from which the plaintiffs had good reason to expect to find. In other words, a strong notice pleading regime might have allowed a fishing expedition in a well-identified lake but not an ocean. To stretch the analogy further, notice pleading would have demanded that the plaintiff identify what sort of fish she might catch, but not verify the existence of any individual fish in advance of the trawling expedition.
These two pleading standards are referred to as notice pleading and fact pleading. The differences between these two pleading standards are important to consider when filing a claim. The notice pleading standard is in alignment with the ideology that the pleading is needed to notify the relevant parties of the issues in the case.
As such, notice pleading is a more relaxed pleading requirement than its counterpart fact pleading see below. Notice pleading was adopted by the Federal Rules of Civil Procedure in the s, and numerous jurisdictions have followed the Federal Rules of Civil Procedure and have embraced notice pleading.
On the other hand, fact pleading requires one to provide to the court all facts that are needed to prove the cause of action. Fact pleading mandates that one must assert detailed facts that underlie the cause of action.
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