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The Great Hall of the Supreme Court Building in Washington, D.C.
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On May 21, 2007, the U.S. Supreme Court decided Bell Atlantic Corp. v. Twombly and gutted the venerable language from Conley v. Gibson that every civil procedure professor and student can recite almost by heart: that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” This Essay explains how Bell Atlantic did so and discusses some of its implications for pleading claims in the future.
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Bell Atlantic is a significant statement from the Court from a proceduralist perspective (even if perhaps unremarkable from an antitrust perspective). The Supreme Court had cited to the “no set of facts” language in Conley twelve times in controlling opinions, and many lower courts had adhered to it and its liberal notice-pleading standard. For example, just a few weeks ago, Judge Easterbrook wrote for the U.S. Court of Appeals for the Seventh Circuit in Vincent v. City Colleges of Chicago: “[A] judicial order dismissing a complaint because the plaintiff did not plead facts has a short half-life. Any decision declaring ‘this complaint is deficient because it does not allege X’ is a candidate for summary reversal, unless X is on the list in Fed. R. Civ. P. 9(b).” The Seventh and other circuits will now have to change their pleading jurisprudence.
The question, though, is what that change will look like.
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By Andrew T. George
Though the Supreme Court might think otherwise, it has yet to hear a case where a police officer used deadly force to stop a nondangerous fleeing suspect. The Court recently showed its belief to the contrary in Scott v. Harris, where it found that a fleeing suspect posed a sufficient danger to justify the use of deadly force. In order to reach that conclusion, the Scott Court distinguished Tennessee v. Garner, which had held that a police officer could not use deadly force to stop the fleeing suspect. Although the Scott Court never explicitly questioned Garner’s reasoning, the Court’s distinction implicitly demonstrated a fundamental flaw in Garner’s understanding of dangerousness. Scott showed that dangerousness is not confined to a suspect’s potential to commit crimes after escaping; dangerousness is just as great a concern during the escape itself.
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