In theory, a complaint is a relatively minor part of a lawsuit, intended to initiate the litigation process. In practice, federal courts are struggling to implement the Supreme Court’s opinions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. This struggle is due, in part, to the fact that neither Twombly nor Iqbal expressly overruled the Court’s pre-Twombly pleading jurisprudence. This Note focuses on how lower courts are assessing the continued vitality of two major pre-Twombly cases: Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit and Swierkiewicz v. Sorema N.A. It finds that lower courts are taking conflicting views on the status of pre-Twombly precedent and concludes that this discord has serious consequences for litigation costs, respect for stare decisis, and litigants’ access to justice.
Lucas F. Tesoriero, Pre-Twombly Precedent: Have Leatherman and Swierkiewicz Earned Retirement Too?, 65 Duke L.J. 1521 (2016).
Available at: http://scholarship.law.duke.edu/dlj/vol65/iss7/5