In 2007 and 2009, respectively, the United States Supreme Court decided Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, abrogated Conley v. Gibson’s notice pleading standard, and imposed a new plausibility pleading standard upon the federal court system. Alaska, along with a majority of states however, still retains Conley’s “no set of facts” notice pleading standard. This Note asks, in light of the difference between the federal and Alaska pleading standards, whether Alaska—or any state—could be forced to apply the federal pleading standard when it adjudicates federal substantive claims. Prior to Iqbal, a plaintiff in Alaska would have faced the same pleading obligations in state and federal court regardless of whether he pleaded a state or federal claim. As this Note describes, now, a plaintiff could face different pleading standards depending on not only where he brings his claim, but also, if he’s in state court, whether he brings a state or federal claim. The reason for this is the Reverse-Erie doctrine: an little-developed judicial choice of law theory that broadly asks which procedure, federal or state, applies in a state court proceeding. Using the differences between federal and state pleading standards as an opportunity to flesh out Reverse-Erie, this Note concludes that while it is unlikely that the Supreme Court would force a state to adopt the federal pleading standard, the jurisprudential framework for such a move exists.
Philip A. Tarpley,
The Doctrine In The Shadows: Reverse-Erie, Its Cases, Its Theories, And Its Future With Plausibility Pleading In Alaska,
32 Alaska Law Review
Available at: http://scholarship.law.duke.edu/alr/vol32/iss1/7