Plausibility Pleading

Abstract

Court was unabashed about this change of course: it explicitly abrogated a core element of its 1957 decision in Conley v. Gibson, which until recently was the bedrock case undergirding the idea that ours is a system of notice pleading in which detailed facts need not be pleaded. Departing from this principle, the Court in Twombly required the pleading of facts that demonstrate the plausibility of the plaintiff's claim. This Article explicates and offers a critique of the Court's new jurisprudence of plausibility pleading. The Court's new understanding of civil pleading obligations does not merely represent an insufficiently justified break with precedent and with the intent of the drafters of Rule 8. It is motivated by policy concerns more properly vindicated through the rule amendment process, it places an undue burden on plaintiffs, and it will permit courts to throw out claims before they can determine their merit. Ultimately, the imposition of plausibility pleading further contributes to the civil system's long slide away from its original liberal ethos towards an ethos of restrictiveness more concerned with efficiency and judicial administration than with access to justice. I fear that every age must learn its lesson that special pleading cannot be made to do the, service of trial and that live issues between active litigants are not to be disposed of or evaded on the paper pleadings.—Charles E. Clark