The Scientific Impossibility of Plausibility
Rory D. Bahadur
Washburn University - School of Law
March 14, 2011
Nebraska Law Review, Vol. 90, No. 2, 2011
In Swierkiewicz, in 2002 the Supreme Court reiterated that heightened pleading standards could be achieved only through Congressional action or via the Rules Enabling Act but not by judicial interpretation. Yet, in 2007 and 2009 in the Twombly and Iqbal decisions respectively the Supreme Court announced that the allegations in a civil complaint had to be plausible in order to survive a motion to dismiss. As a result, the Supreme Court goes to great judicial efforts to assure plausibility is not a heightened pleading standard and that it is consistent with the pleading standard reaffirmed in Swierkiewicz. However, a careful comparison of the pleadings in the Swierkiewicz decision with the plausibility standard clearly establishes that plausibility entails impermissible, heightened pleading standards. The Supreme Court also assures that plausibility analysis is not probability analysis but it is obvious that plausibility determinations are in fact Bayesian probability analyses. Because Bayesian probability analysis involves incorporation of new data in assessing an event’s plausibility based on that event’s previously established relationships with other observed events, plausibility analysis is suitable for post-discovery motions such as summary judgment but it is wholly unsuited for the pleading stage of litigation. The plausibility standard therefore represents a significant normative shift in the Supreme Court’s jurisprudence. The first prong of the plausibility test, which involves separating law from fact, is also widely acknowledged as an impossible feat. Plausibility, stripped of the raiment of meaningless and unsustainable judicial descriptions, is also indistinguishable from a constitutionally prohibited, judicial credibility determination. Finally, plausibility wreaks havoc on fundamental tenets of statutory interpretation because it results in a nonsensical, overlapping, functional amalgam of Federal Rules of Civil Procedure 8, 9(b), 11 and 12. Despite the aforementioned structural defects, recent scholarship attempts to salvage the plausibility standard by equating it with empathic judging but modern neuro-scientific research dispels this view and demonstrates empathic capacity in human beings is bio-genetically biased based on race as a result of evolutionary strategies for survival. Because it is so unsupportable it may be that plausibility is a wholly imagined procedural substitute for the following three frightening substantive possibilities the Court needed to dodge in Iqbal at all costs: Korematsu is still good law; the federal courts are inept at dealing with matters of war; and the Constitution cannot realistically apply to all situations involving national security.
Number of Pages in PDF File: 68Accepted Paper Series
Date posted: March 16, 2011 ; Last revised: January 10, 2012
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