Why Heightened Pleading—Why Now?
By Jeffrey J. Rachlinski. 
114 Penn St. L. Rev. 1247.
As Professor Ray Campbell stated in his remarks at this symposium, Ashcroft v. Iqbal may be the Supreme Court case that launched a thousand law review articles. Although a statement like that is usually meant to imply that too much ink is being spilled on a subject, in this case the game is worth the candle. Civil pleading rules play a central role in the rule of law in any legal system. Determining who is allowed to invoke the machinery of the civil justice system, and under what circumstance they may do so, lies at the core of how a system of law defines itself. The papers in this symposium outline how Iqbal has the potential to change the very purposes of the system of civil justice and give some glimpse into why such a change has come about.
The rules of pleadings are critical to the rule of law in a civil justice system because of what it means to assess a case on the pleadings. Dismissing a case at the pleadings phase of litigation means that the plaintiff will not have access to the mechanisms of discovery to uncover evidence that might support her claims. When a plaintiff’s claims fail to identify any legal theory that a system recognizes as allowing recovery, this might seem appropriate. After all, before a case is filed a plaintiff can conduct whatever research lies within her means to identify a legal theory that supports her claims; if she cannot identify one before the lawsuit begins, then it is hard to see why she could identify one afterwards. But Iqbal requires more from a plaintiff. Iqbal requires that a plaintiff convince a trial judge that her claims are apt to have factual support—that they are plausible. Without the ability to use civil discovery to support her case, a plaintiff might not have the facts she needs to make her claims seem plausible.
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