38 Pages Posted: 21 Sep 2009 Last revised: 10 Feb 2011
Date Written: January 4, 2010
Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court’s two recent and controversial decisions on pleading, require a judge to determine if a plaintiff’s claim is “plausible” at the pleading stage of litigation. Following Twombly and Iqbal, commentators have complained that the inquiry unfairly injects subjectivity into pleading, allowing a judge to screen disfavored cases before a plaintiff has an opportunity for discovery. Others have argued that the plausibility inquiry is anywhere from “foggy” to “incoherent.” In short, these two cases have placed “federal pleading standards in crisis.”
This Article makes plausibility coherent.
To begin, this Article examines plausibility from a judge’s perspective, an exercise that has not yet been explicitly undertaken. This exercise leads to new insights about plausibility and a new system for adjudicating the plausibility inquiry that focuses on correlation.
Correlation plausibility best explains what a judge is really saying when she says that a complaint is plausible and provides a concrete, tangible formulation of plausibility. No previously proposed approach can adequately explain the Supreme Court’s holdings in both Twombly and Iqbal. This new understanding of plausibility moves the inquiry away from ambiguity and subjectivity and provides a plaintiff a blueprint for moving plausibility toward objectivity, giving a plaintiff a better chance of changing the mind of a judge predisposed against her claim.
Keywords: Twombly, Iqbal, 12(b), Pleading, 12(b)(6), motion to dismiss
Suggested Citation: Suggested Citation
Brown, Stephen R., Correlation Plausibility: A Framework for Fairness and Predictability in Pleading Practice After Twombly and Iqbal (January 4, 2010). Creighton Law Review, Vol. 44, p. 141, 2010. Available at SSRN: https://ssrn.com/abstract=1476381