It’s no secret, we’ve been one of the biggest boosters of TwIqbal around, going back to the beginning of the blog. Even though Twombly was an antitrust case, we were on it within days as something defense lawyers in the drug/device area should be utilizing – listing eleven specific allegations that should require factual support. We quickly passed along the first Twombly win in our sandbox. We jumped on Iqbal, too, almost as soon as it came down, even though substantively that case was even further afield. We got quoted in the papers. We jousted with pro-plaintiff law professors, both directly and indirectly, when they supported now-failed legislative attempts by the other side of the “v.” to kill the new and improved pleading standard in its cradle.
Beyond that, we started our “TwIqbal cheat sheet” (the first of the nine cheat sheets we maintain) on May 13, 2010, collecting drug/device wins under TwIqbal – and our standards are high, we add only cases where no TwIqbal argument that the defendant made lost. The TwIqbal cheat sheet has more than 100 (139, to be exact) decisions. We’ve also categorized favorable TwIqbal decisions, by what spec of pleading they address.
But the TwIqbal cheat sheet did something else. It was our first use of the neologism/portmanteau “TwIqbal.” And that was pretty close to a first. There are 16 cases on Westlaw using the term “TwIqbal.” The oldest one is RHJ Medical Center, Inc. v. City of DuBois, 754 F. Supp.2d 723, 730 (W.D. Pa. Dec. 10, 2010).
Checking out the Westlaw “secondary sources” library, we see the first emergence of “TwIqbal” in an academic source to be the published transcript (7 J.L. Econ. & Pol’y 195, 201) of the “5th Annual Judicial Symposium on Civil Justice Issues George Mason Judicial Education Program,” that occurred on December 5-7, 2010.
Lawyers have been using the term, too. A comprehensive “trial documents” search on Westlaw turned up twenty briefs employing our little term of endearment, the earliest being a brief by McGuire Woods filed July 2, 2010. Appellate lawyers have been more reticent. There are only five briefs using “TwIqbal” on Westlaw, the earliest being March 16, 2011.
So this blog beat anything on the legal side of Westlaw. Still, DDLaw does not claim to have coined the term “TwIqbal” outright – although the capital “I” seems to be our peculiarity. Bexis first heard it on April 29, 2010. It was used by a four-speaker panel, Nate Cade, Anne Cohen, Dara Mann, and Mark Olson, discussing pleading developments at the spring conference of the Product Liability Advisory Council (“PLAC”). Bexis brought it to the blog shortly thereafter, and that as they say was that. We’re sure we helped popularize TwIqbal, but we don’t claim authorship.
After finding no older use of the TwIqbal on the legal side, we tried Westlaw News. Aha! We found two news stories older than DDLaw’s first use, both from a publication called the Virginia Lawyer’s Weekly. These articles are: Staff, “Trendspotting: Developments and Stories We’ll Be Watching in 2010” (Feb. 8, 2010) (listing Paul Fletcher, Deborah Elkins, Alan Cooper, Peter Vieth and Sarah Rodriguez), and “Alan Cooper, Looking Back at 2009: Virginia’s Top News Stories (Dec. 14, 2009). The older of these two stories used TwIqbal the way we do: “Together, the cases are often referred to as Twiqbal, a shorthand for the pleading standard the U.S. Supreme Court established.” Given that George Mason is located in Virginia, and McGuire Woods has large presence there, the Old Dominion looks like a promising Garden of Eden for the TwIqbal genesis.
Still trying to track down the creator of “TwIqbal,” we Googled “Twiqbal” with the customized range of 2009-2010. The oldest use of the term “TwIqbal” on Google was in an August 25, 2009, blogpost on the Virginia Appellate Law blog entitled “Twiqbal Alert: Branham v. Dolgencorp, Inc.” Virginia it seems to be. So we emailed Jay O’Keefe, the publisher of that blog, and asked him – did he invent “TwIqbal”? Here’s what he told us:
The answer to your question is a very unsatisfying “sort of.” I first used “Twiqbal” in this July 2009 post.
I’m not aware of anyone using the term before then. But I can’t really take credit for coining the neologism because I didn’t give Twiqbal its now-standard definition.
And that appears to be correct. Jay came up with the term, but his definition of “the ol’ Twiqbal,” as he called it, was the infiltration of the heightened federal pleading standard into state court (something we blogged about here).
So as best we can tell, Jay O’Keefe independently coined the term “TwIqbal,” but not its current meaning. The first use of TwIqbal we’ve found as a general reference to the standard set by the Supreme Court’s Twombly and Iqbal decisions was the Virginia legal press article in late 2009.
We also checked with the PLAC speakers to see if any of them came up with it independently. After all, great minds tend to think alike. Most of them, understandably don’t recall nearly four years later, but Nate Cade did have some recollection. He stated that “TwIqbal” was independently coined during conversations between members of a task force acting under the aegis of the ABA’s Standing Committee on Federal Judicial Improvements sometime between August 2009 and the task force’s presentation on April 22, 2010.
So that’s as much as we know. Like other success stories, TwIqbal seems to have more than one (if less than a thousand) fathers.