This interdisciplinary Article employs a scientific approach to euthanize any suggestion that plausibility pleading is empirically supportable. In the Twombly and Iqbal decisions in 2007 and 2009, the Supreme Court replaced the liberal notice pleading standard of Conley v. Gibson with a heightened requirement that pleadings must be plausible to survive a motion to dismiss. Unlike previous scholarship, I address plausibility in light of a broader defect plaguing all legal theory; courts are not required to defend their hypotheses or legal theories in the same empirical manner as scientists. For example, lower courts and practitioners alike are forced to assume and accept the existence of the plausibility standard simply because it was conjured by the Supreme Court. Admittedly, a scientific perspective may limit development of the law, but it ensures that judges, scholars, and legal practitioners are practicing a body of law which at least partly reflects the reality and limitations of our physical universe. This Article demonstrates plausibility pleading is devoid of any connection to that reality. The Article begins with a brief analysis of what the language of Iqbal and Twombly claims plausibility pleading is, followed by a careful examination of the additional subtext in the decisions which explains what plausibility is not. I demonstrate that the most conspicuous and important aspect of this subtext is the significant judicial effort the Twombly Court expended to emphasize the consistency of its decision with the 2002 Swierkiewicz decision, in which a unanimous Supreme Court reaffirmed the previously existing motion to dismiss standard. Next, in accord with the Article’s unique approach, I examine the actual pleadings in the Swierkiewicz case. Therein, the analysis of the pleadings reveals the absolute falsity of the Supreme Court’s claim that Twombly is consistent with Swierkiewicz. I explain how the motion to dismiss in Swierkiewicz expressly argued for the application of the identical plausibility standard adopted in Twombly and Iqbal, and I further explain how this is the same standard the Court unanimously rejected seven years prior in Swierkiewicz as being beyond its power to implement. Using an analogy to Bayesian mathematical theory, the Article demonstrates, despite the Supreme Court’s claim to the contrary, that the plausibility analysis is a probability analysis. I argue this probability analysis is abhorrent to the constitutionally mandated division of labor between judge and jury in the civil system, and it represents a radical, normative shift in established pleading standards. The Article next applies modern neuroscientific research discussing limits on human beings’ ability to empathize, and it specifically discusses the existence of a genetic predisposition to bias against phenotypically distinct individuals. I explain how this research dispels the scholarly suggestion that plausibility and its encouragement of “judicial experience and common sense” is a waypoint to a laudable, empathy based, utopian judicial state. Additionally, the Article demonstrates the first step in determining plausibility—the separation of law from fact is widely acknowledged, including by the Supreme Court itself—is as an impossible feat. Further, the Article reveals how markedly similar plausibility is to a constitutionally prohibited credibility analysis. Finally, the Article suggests plausibility analysis is a nonsensical amalgam of Federal Rules of Civil Procedure 8, 9(b), 11 and 12. I demonstrate any pleading deemed not plausible pursuant to Rule 12(b)(6) also violates Rule 11. Further, I show that the pleading standard of Rule 8 is now indistinguishable from and possibly higher than Rule 9(b)’s heightened pleading standard.
RORY D. BAHADUR,
The Scientific Impossibility of Plausibility,
90 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol90/iss2/1