I turn now to a Twombly specific critique: if this change was needed, it should have come by amendment to the Federal Rules, not by Supreme Court interpretation of Rule 8(a)(2).

In essence, Twombly  re-imposed the fact-intensive pleading system that was in place pre-1937.  This system is not without merit.  In 15 states (including my home state of Michigan) apply this scheme in their state courts.  Moreover, while the Federal Rules generally adopt a notice-pleading regime, the Federal Rules do impose a fact-pleading regime by exception to certain classes of cases under Rule 9.  This fact-intension pleading scheme has the benefit (as the Twombly Court noted) of restricting the ability of meritless cases from proceeding to the at-times costly discovery stage. 

While in most cases, the costs of discovery do not appear rampantly out of control, there are certain categories of claims, anti-trust being one (Thomas E. Willging et al., An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C. L. Rev. 525, 532 (1998)), where discovery costs do tend toward the extreme.    Thus, there are a class of cases in which, from a policy perspective, good reasons exist to believe that access to discovery should be limited or curtailed.

The Court,  however, by interpreting Rule 8(a)(2) under a plausibility standard, made a rule that is applicable to every case.  See Iqbal, 129 S.Ct. at 1957.  It would have been better to focus the cure of limited access to discovery to those areas that required it.   That is, if anti-trust suits (and a few others) are as, a matter of empirical fact, significantly more costly in discovery than the bulk of suits, we should treat them differently.  Perhaps they should be added under the fact-pleading regime of Rule 9. 

The institutional posture of the rules committee, not the Court disposing of a case, is the place to make these types of arguments as they reach across swaths of cases instead of just discussing the facts of one particular case.  Moreover, the rules committee has the power to make any number of nuanced changes to address the cost of discover in such cases.  For example, it could amend Rule 26 (the principle discovery rule) to narrow initial discovery in such cases and impose an early summary judgment motion under Rule 56.  Or it could beef up Rule 11 (the ethics rule) to address meritless pleading in anti-trust suits.  The Court disposing of a particular case, however, by this institutional posture is forced into making a one-size-fits-all rule.

Importantly, this one-size-fits-all rule comes at a cost.  Again in the vast bulk of cases the cost of discovery is not radically out of control.  Nevertheless, the Court has applied this plausibility requirement as to inferences upon all plaintiffs.  This requires them to plead facts to survive a pre-discovery dismissal that, often times, they simply cannot obtain without discovery.  For example, many federal anti-discrimination claims require  allegations about the defendant employer’s motivations.  Until one gets the boss into a deposition, allegations about motivation will necessarily be done by inference.  But now, skeptical judges are empowered to dismiss, say, gender or racial discrimination cases at the earliest stage because the judge does not find the plaintiff’s inference plausible. 

This puts plaintiffs in a catch 22.  They must plead discriminatory motivation with facts under Twombly.  But they cannot get those facts until they get to discovery.  But they cannot get to discovery until they plead discriminatory motivation with facts.  And on and on.  Now in those 5% of cases where discovery really is exceptionally expensive, such a scheme—all things considered—might be a sound policy choice.  But in a typical Title VII cases, say, where discovery is not so costly, I am hard pressed to believe this a sound policy.