What Is the Difference Between a Conclusion and a Fact?

In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint's conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing "legal conclusions" from factual allegations.

The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions. This Essay, written for a symposium on the tenth anniversary of Iqbal, explores the definitional problem with the conclusion-fact distinction and examines how district courts have applied the distinction in recent cases.