The plausibility pleading regime of Twombly and Iqbal has generated continuing controversy and concern over its effects on the ability of plaintiffs, particularly certain categories of civil rights plaintiffs, to bring cases in federal court. This Article assesses the effects of plausibility pleading by undertaking a novel thought experiment: What would plaintiffs’ filing and pleading decisions look like in a world with no pleading standard at all? In other words, what if there were no motions to dismiss for failure to state a claim and every filed case reached discovery? This Article shows that in this hypothetical world, plaintiffs usually either file factually detailed, plausible complaints or do not file at all. In short, pleading standards generally will not affect whether the plaintiff files suit or the court dismisses the complaint. Perhaps most surprisingly, this is true even for cases in which information asymmetries favor the defendants. Plaintiffs’ attorneys, not judges, are the gatekeepers to court, and pleading practices are driven not by doctrine but by settlement strategy. This analysis generates empirical predictions, which find support in a wide range of qualitative (though admittedly inconclusive) evidence. Further, this thought experiment may turn the normative critique of Twombly and Iqbal on its head: Plausibility pleading may advance, rather than undermine, the “liberal ethos” of the Federal Rules of Civil Procedure. Plausibility pleading can make it easier for plaintiffs with risky but worthwhile cases to have their day in court.
Hubbard, William H.J.
"A Fresh Look at Plausibility Pleading,"
University of Chicago Law Review: Vol. 83
, Article 3.
Available at: http://chicagounbound.uchicago.edu/uclrev/vol83/iss2/3