Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants

23 Pages Posted: 1 Oct 2010 Last revised: 13 Oct 2010

See all articles by William Funk

William Funk

Lewis & Clark Law School

Thomas Owen McGarity

University of Texas at Austin - School of Law

Sidney A. Shapiro

Wake Forest University School of Law

James Goodwin

Center for Progressive Reform

Date Written: May 1, 2010


Inside the U.S. federal courts, ordinary Americans have long been able to air their complaints and obtain justice, and through their individual legal victories, they have advanced important national goals, including public health and safety, environmental protection, civil rights, and fair competition for small businesses. Before they could win their cases, however, plaintiffs had to get the federal courts to agree to hear their complaints in the first place – a step in the litigation process known as pleading. In effect, the pleading serves as the key to the courthouse door.

The courthouse door has become considerably more difficult to open in recent years, thanks to two U.S. Supreme Court opinions, Bell Atlantic v. Twombly and Ashcroft v. Iqbal. In their rulings in these cases, the Court created “plausibility pleading,” a new and heightened standard that plaintiffs must satisfy in order to proceed to the next phase of litigation.

This higher pleading standard replaced “notice pleading” – an objective pleading standard that had prevailed for nearly 80 years. The Federal Rules of Civil Procedure – the body of rules that governs how federal civil trials are conducted – first established this objective pleading standard in order to promote its goal of resolving cases on their merits following an adequate opportunity for full disclosure of relevant information. Under this standard, a plaintiff needed to only give the defendant and the court “notice” of the general nature of their claim by asserting a set of facts that briefly explained how the defendant had harmed them. Once they cleared that bar, the case would enter the “discovery” phase, during which plaintiffs would either develop – or fail to develop – the evidence to make their case in court. In contrast, plausibility pleading effectively requires the plaintiffs “prove” their case before they have had any chance to examine evidence in possession of the defendant or question witnesses – things that normally happen during discovery. The practical effect of plausibility pleading is that many deserving plaintiffs will never get through the courthouse door, and will be denied the opportunity to make their case to a judge or jury.

This white paper explains why Congress should take immediate legislative action to reverse the Twombly and Iqbal decisions. Specifically, the paper offers the following criticisms of plausibility pleading:

1. Notice pleading is more consistent with the language and goals of the Federal Rules of Civil Procedure.

2. Plausibility pleading will undermine the effective functioning of both the federal civil litigation system and the federal regulatory system.

3. The Supreme Court’s policy arguments in favor of plausibility pleading do not hold up under closer scrutiny.

Keywords: Pleading, Supreme Court, Access to Justice

Suggested Citation

Funk, William F. and McGarity, Thomas Owen and Shapiro, Sidney A. and Goodwin, James, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants (May 1, 2010). Lewis & Clark Law School Legal Studies Research Paper No. 2010-25, Available at SSRN: or

William F. Funk

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219-7799
United States
503-768-6606 (Phone)
503-768-6671 (Fax)

Thomas Owen McGarity

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1384 (Phone)

Sidney A. Shapiro

Wake Forest University School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5430 (Phone)

James Goodwin (Contact Author)

Center for Progressive Reform ( email )

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
United States

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