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Since the early nineteenth century, the interpretation of the Seventh Amendment preservation of the right to a civil trial by jury has remained static and become increasingly anachronistic. Over the same period of time, the evolution of modern civil procedure pleading standards has been on a collision course with that interpretation. The penultimate 2007 Supreme Court opinion in this field, Bell Atlantic Corp. v. Twombly, raised the specter of an impending impasse between pleading standards and the Seventh Amendment. The 2009 opinion in Ashcroft v. Iqbal is the point of impact. While the Iqbal opinion fails to even acknowledge a potential conflict with the Seventh Amendment, the decision inescapably interprets Federal Rule of Civil Procedure 8 in a manner that is unconstitutional when measured against the traditional (and continuing) interpretation of the Seventh Amendment-the so-called "historical test."

The collision between Iqbal and the Seventh Amendment, simply stated, is that under the historical test it is unconstitutional to give a judge the power to weigh the factual heft of a complaint at the outset of a civil case and to dismiss it as insufficient. Yet, that power is precisely what the Iqbal Court held was a permissible mechanism for controlling frivolous litigation.

Part I of this Article traces the development of the pleading standards from writs to Rule 8 to Iqbal. Part II demonstrates that under the historical test, Iqbal's interpretation of Rule 8 is unconstitutional- at least in cases to which the Seventh Amendment applies.