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79 U.S.L.W. 2271 (2011)


Our federal courts have introduced a degree of uncertainty in the law of pleading that ought to be resolved with a clear decision about the scope of Twombly and Iqbal. We write to set forth what we believe are the overwhelming arguments in support of the developing majority view: pleading standards should not distinguish between plaintiffs and defendants, or between pleadings asserting and pleadings defending against a claim. Proponents of the minority view make policy arguments grounded in the asserted realities of litigation, leveraging small textual differences between Federal Rule of Civil Procedure Rule 8(a) and 8(c). But the sounder position adopts an even-handed symmetry in pleading. Since there is a paucity of literature on this subject, we write to urge courts to adopt the current majority position and eliminate this uncertainty.