Bell Atlantic Corp. v. Twombly

At this point, we have defined code pleading and notice pleading, and you have reviewed an example of each.  So, which regime does the Federal Rules of Civil Procedure adopt?

As suggested above, when in 1938 the Federal Rules became law, the legal community understood that they had adopted notice pleading.  And so matters stood for just under 70 years, with occasional hints of dissatisfaction and rumblings that, at least in certain circumstances, Rules 8(a)(2) and 12(b)(6) might require something more than putting the court and the defendant on notice of the nature of the allegations and the factual transaction giving rise to the lawsuit.

In 2007, the Supreme Court decided Bell Atlantic. Two years later, it decided Iqbal.  Those two decisions rewrote civil procedure textbooks.  In those decisions, the Supreme Court interpreted Rules 8(a)(2) and 12(b)(6) as articulating not notice pleading, but something called "plausibility pleading."  In my view, "plausibility pleading" is just code pleading (minus the possiblity of having a case dismissed for having included legal conclusions, which under plausiblity pleading are simply ignored).  Read these two decisions to see if you agree.