Professor Mulligan’s characterization of Iqbal as an “amendment” to  Rule 8 misses the mark.  Iqbal did not “amend” Rule 8 any more than Conley did.  Rather, Iqbal interpreted Rule 8.  And it  is unquestionably the role of the Supreme Court to definitively interpret the Federal Rules of Civil Procedure.  Rule 8 does not call for pure notice pleading.  It requires not only a “short plain statement of the claim,” but also sufficient detail in this statement to “show[] that the pleader is entitled to relief.”  Conley’s construction of Rule 8 rendered this latter requirement virtually meaningless.  Iqbal corrects this error.  The Iqbal standard does not represent a return to the pleadings standards that prevailed before the pleadings standards that prevailed prior to 1937.  Unfortunately, however, a careful survey of pre-1937 pleadings standards cannot be accomplished in this format. 

Requiring plaintiffs to show a reasonable basis for believing that they may have a legitimate claim does not create a Catch-22.  It is simply not true that plaintiffs can discover whether such a basis exists only through discovery.  Taking Professor Mulligan’s example of a Title VII discrimination suit, if employees are discharged but have no grounds to plausibly believe that the discharge was driven by discriminatory motive, then they should not file lawsuits.  The mere fact that a person is fired should not be sufficient, without more, to set a lawsuit in motion.  On the other hand, if employees have a reasonable basis to believe that their discharge was the result of discrimination, they should allege the specific facts which lead them to that conclusion and they should have no trouble satisfying Rule 8.

Professor Mulligan is undoubtedly correct that plaintiffs incur costs in conducting discovery.  But that does not mean that the burden on plaintiffs and defendants is anywhere near symmetrical.  Plaintiffs will usually have fewer witnesses subject to deposition, especially where an individual sues a business.  While plaintiffs still must pay for attorney time in taking the deposition of a defense witness, defendants must pay both for the time of the attorney and the witness’s time.  Further, plaintiffs incur virtually no costs in demanding that defendants sift through thousands—and oftentimes millions—of documents to respond to requests for production.  It is simply beyond question that baseless lawsuits are often settled to avoid the costs of discovery.  

Professor Mulligan suggests that the a stratified system may be worth considering under which different types of cases are subjected to different pleading standards.  However, as Professor Mulligan acknowledges, such a system can be accomplished only by an amendment to the rules.  Therefore the issue goes beyond whether Iqbal is a proper interpretation of the existing rules.  Further, such a system would be accompanied by its own set of complications, inviting litigation over precisely what type of case a given complaint presents and whether it must clear the low or high hurdle.