The Substantive Origins of 'Plausible Pleadings' - An Introduction to the Symposium on Ashcroft v. Iqbal

15 Pages Posted: 25 Jan 2010 Last revised: 12 Mar 2010

Edward Brunet

Lewis & Clark Law School

Date Written: January 25, 2010

Abstract

Iqbal’s use of the word “plausible” as the new standard for Rule 12(b)(6) motions is confusing at several levels. First, plausible, used as a procedural standard 22 times in the Iqbal majority opinion, comes with a substantive past. The Matsushita decision utilized plausible or variations on plausible in a substantive sense to mean that a claim “makes no economic sense.” This use of plausible embraces economic theory and bears little resemblance to a procedural tool as set forth in Iqbal. Second, the Matsushita decision used plausible in the context of a defendants’ motion for summary judgment. Indeed, Matsushita’s majority used variations on plausible 13 times, perhaps causing some lower courts to adopt plausibility as a surrogate new standard for assessing summary judgment. Of course, the 1986 summary judgment Trilogy clearly articulated a new directed verdict standard for assessing Rule 56 requests. But all those plausibility usages in Matsushita create a feeling that the word has a significant procedural role to play and create further confusion. Was the Court in Twombly and Iqbal trying to collapse two standards, 12(b)(6) and 56 into one? This brief essay argues that the choice of plausible in Iqbal and Twombly was a mistake and that this mistaken word selection should not affect summary judgment, a very different process than the motion to dismiss for failure to state a claim.

Keywords: Plausible, Summary Judgment, Rule 12b(6)

Suggested Citation

Brunet, Edward, The Substantive Origins of 'Plausible Pleadings' - An Introduction to the Symposium on Ashcroft v. Iqbal (January 25, 2010). Lewis & Clark Law Review, Vol. 14, No. 1, 2010; Lewis & Clark Law School Legal Studies Research Paper No. 2010-5. Available at SSRN: https://ssrn.com/abstract=1542087

Edward Brunet (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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