And Justice for ... Anyone?

The Danger from 'Plausibility Pleading'

Inside the U.S. federal courts, ordinary Americans have long been able to air their complaints and obtain justice, and through their individual legal victories, they have advanced important national goals, including public health and safety, environmental protection, civil rights, and fair competition for small businesses. Before they could win their cases, however, plaintiffs had to get the federal courts to agree to hear their complaints in the first place—a step in the litigation process known as pleading. In effect, the pleading serves as the key to the courthouse door. But two Supreme Court cases have made that door much harder to get through.The courthouse door has become considerably more difficult to open in recent years, thanks to two U.S. Supreme Court opinions, Bell Atlantic v. Twombly and Ashcroft v. Iqbal. In their rulings in these cases, the Court created “plausibility pleading,” a new and heightened standard that plaintiffs must satisfy in order to proceed to the next phase of litigation.

The practical effect of plausibility pleading is that many deserving plaintiffs will never get through the courthouse door, and will be denied the opportunity to make their case to a judge or jury. The heightened pleading standard requires plaintiffs to largely “prove” their case before they have had any chance to examine evidence in possession of the defendant or question witnesses. Those are things that happen during the “discovery” process in a trial, and until the Court began erecting barriers, plaintiffs had simply to give the defendant and the court “notice” of the general nature of their claim by asserting a set of facts that briefly explained how the defendant had harmed them.  Once they cleared that bar, the case would enter the discovery phase, during which plaintiffs would either develop—or fail to develop—the evidence to make their case in court. 

In a May 2010 white paper, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, CPR Member Scholars William Funk, Thomas McGarity, and Sidney Shapiro, with CPR Policy Analyst James Goodwin, present a comprehensive critique of the heightened pleading standard. They contend:

• “Notice pleading”—the objective pleading standard that preceded plausibility—pleading was more consistent with the language and goals of the Federal Rules of Civil Procedure—the body of rules that govern the conduct of federal civil litigation.
• Plausibility pleading will undermine the effective functioning of both the federal civil litigation system and the federal regulatory system.
• The Supreme Court’s policy arguments in favor of plausibility pleading do not hold up under closer scrutiny.