Plausibility Pleading Revisited and Revised:
A Comment on Ashcroft v. Iqbal
Robert G. Bone
Forthcoming in Volume 85, Notre Dame Law Review (2010)
Boston University School of Law Working Paper 09-41
This Essay critically examines the Supreme Court’s most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), decided in May 2009. The essay supplements and extends the analysis in my recent article, Twombly, Pleading Rules, and the Regulation of Court Access, 94 Iowa L. Rev. 874 (2009), which examined the Supreme Court’s seminal Bell Atlantic Corp. v. Twombly decision and evaluated the costs and benefits of screening meritless suits at the pleading stage. In this essay, I argue that Iqbal does much more than clarify and reinforce key points in Twombly; it takes Twombly’s plausibility standard in a new and ultimately ill-advised direction. My criticism has two parts. First, Iqbal adopts a “two-pronged approach” that filters legal conclusions in the first prong before applying the plausibility standard to factual allegations in the second. I argue that this two-pronged approach is incoherent. There is only one prong: the judge must determine whether the complaint, interpreted as a coherent whole, plausibly supports each element of the legal claim. The second problem with Iqbal runs deeper. Iqbal screens lawsuits more aggressively than Twombly, and does so without adequate consideration of the policy stakes. In particular, Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits. The thick screening model is highly problematic on policy grounds, even in cases like Iqbal that involve qualified immunity. Moreover, the Supreme Court is not institutionally well-equipped to decide whether strict pleading is desirable, especially when it implements a thick screening model. Those decisions should be made through the formal Rules Enabling Act process or by Congress.
Keywords: pleading, plausibility, case screening, Rule 8(a)(2), Ashcroft v. Iqbal, Bell Atlantic Corp. v. Twombly, two-pronged approach
Accepted Paper Series
Bone, Robert G.,"Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal," forthcoming in Volume 85, Issue 4 Notre Dame Law Review (2010); B.U. Law Working Paper No. 09-41; SSRN No. 1467799.
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