Heightened pleading

This Article compares the advent, proliferation, and post-Leatherman experiences of heightened pleading in the judicially imposed civil rights context with the parallel congressional experiences in securities fraud and Y2K actions. This comparative analysis demonstrates how the device has proven unworkable, whether initially imposed by the courts or Congress. The Article also compares the procedural alternatives to heightened pleading available under both civil rights and securities laws and discusses why those alternatives are preferable. Finally, the Article analyzes how putatively neutral procedural revisions can profoundly affect the course of substantive law. In 1938, the drafters got it right. Reacting to the complexity and uncertainty of the common-law and code pleading regimes, they made rules that were simple, uniform, and transsubstantive. Rule 8 is the centerpiece. Provided the complaint puts the defendant on notice, a plaintiff easily enters the federal courthouse. This ease of entry reflects a procedural preference for merits determination. Despite strong words from the Supreme Court expressing its continued commitment to this rubric, heightened pleading thrives post-Leatherman.