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University of Chicago Law Review

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2377

Abstract

Part of what’s special about teaching 1Ls is that 1L year initiates law students into the community of lawyers. This community not only shares a common set of professional commitments and qualifications. Thanks to their 1L courses, lawyers share familiarity with a pantheon of famous cases that have been taught for decades. These canonical cases connect the law school experiences of generations of lawyers.

Civil procedure has its share of these classics. Virtually every first-year law student learns the Strawbridge rule for federal diversity jurisdiction.1 International Shoe is part of every 1L’s vocabulary.2 And no law student who learns it forgets the name Erie Railroad Co v Tompkins.3 We insist on teaching Hickman v Taylor,4 a gem of a case but much of which, at least strictly speaking, has been superseded by amendments to the Federal Rules of Civil Procedure5.

For 1Ls taking civil procedure in the past decade, no cases have loomed as large in their collective imagination as Bell Atlantic Corp v Twombly6 and Ashcroft v Iqbal.7 This pair of cases—known (dis)affectionately by the portmanteau “Twiqbal”—established the doctrine of “plausibility pleading” for federal civil actions. Twombly and Iqbal are broadly understood to have raised the bar for a complaint to survive a motion to dismiss in federal court. Plausibility pleading immediately became a staple of the case reporters and an essential topic in every 1L civil procedure course. Over the decade-plus since they came down, Twombly and Iqbal have been the subject of near-universal condemnation in the academy for their incomplete reasoning, lack of grounding in the federal rulemaking process, and anticipated devastating effect on plaintiffs facing motions to dismiss.

But what Twombly and Iqbal need is not denouncement but denouement. For 1Ls trying to understand the Rules and the workings of the US courts, Twombly and Iqbal are a poor prescription for progress. Their fuzzy reasoning leaves students perplexed at what, if anything, the legal rule actually is. And the gathering gloom they portend leaves students to speculate about lower courts in chaos.

Of course, if this really were the state of affairs in federal court, then civil procedure teachers would be duty bound to make these the lessons of Twiqbal for students. But this isn’t the state of affairs—at least not where it matters most. The Supreme Court may be supreme, but the “inferior” courts are the business end of Article III. For every federal action decided by the Supreme Court, there are more than six thousand actions resolved in the lower federal courts,8 and from an access-to-justice perspective, how cases are handled in these lower courts is what matters to the vast majority of plaintiffs,who lack the combination of resources and exceptional legal theories sufficient to reach the Supreme Court.9 Plaintiffs, in other words, like Gloria Swanson.

Swanson, proceeding pro se, was the plaintiff in Swanson v Citibank, N.A.10 She alleged that Citibank’s denial of her application for a home equity loan was the product of race discrimination and sought damages under the Fair Housing Act (FHA).11 The district court judge dismissed the complaint for failure to state a claim, but the Seventh Circuit, in an opinion by Judge Diane Wood, reversed. My claim in this Essay is that, at least for teachers of civil procedure, Swanson belongs in the canon of 1L civil procedure cases alongside Twombly and Iqbal.

Casebooks prioritize Supreme Court decisions for obvious reasons. But an excessive focus on the Supreme Court misses an important part of how our hierarchical court systems operate. For every climactic Supreme Court decision, there is long aftermath in which lower court judges do the dirty work of sorting through the often-nebulous directions from the Court and making the law happen for millions of plaintiffs and defendants.

Swanson exemplifies this. In a concise opinion, Judge Wood rationalizes the muddle of pronouncements in Twombly and Iqbal and grounds the doctrine in the text of Rule 8. Swanson does a better job teaching 1Ls pleading rules than Twombly or Iqbal and does so in a context closer to the kinds of cases most students will encounter as lawyers or judges. It shows that liberal pleading has life after Twiqbal and provides an opportunity for students to reflect on the extent to which, even in a hierarchical court system, the common law process of continuous but incremental change still operates.

And Swanson was a hard case. Judge Richard Posner dissented and argued that, in reversing the dismissal of the complaint, the majority misread Twombly and Iqbal and got the outcome wrong. Swanson gives students a simple—yet balanced—case, perfect for debate and reflection. When I teach Swanson, students routinely split on the proper outcome. Perhaps Judge Posner is more faithful to the language of Twombly and Iqbal, but perhaps Judge Wood is more faithful to the terms and history of Rule 8.

In this Essay, I argue that Swanson is the rare case that belongs in the 1L canon. Part I briefly reviews the doctrine on federal civil pleading and introduces Swanson. I then show how Swanson can serve as the centerpiece of a discussion about pleading doctrine, judging, and legal change. Part II provides an epilogue to Twombly and Iqbal, showing that Swanson was right to say that the story of plausibility pleading is a story of continuity, not discontinuity, in doctrinal evolution. Part III presents my attempt at synthesizing current pleading doctrine, with a heavy dose of reliance on Swanson. Part IV concludes with thoughts on Swanson’s pedagogical value as a close case.12

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