The Burdens of Pleading

30 Pages Posted: 20 Mar 2014

See all articles by Alex Reinert

Alex Reinert

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: March 18, 2014

Abstract

The changes to pleading doctrine wrought by Bell Atlantic v. Twombly and Ashcroft v. Iqbal have been criticized on many grounds. As many commentators have noted, the plausibility pleading doctrine introduced by these cases is consistent with other procedural reforms that have the effect of limiting access of putative plaintiffs to federal civil adjudication. In this Article, I argue that Twombly and Iqbal are more than just the most recent examples of anti-litigation reforms. Plausibility pleading asks federal courts – for the first time since the advent of the Federal Rules of Civil Procedure – to use their "judicial experience and common sense" to assess the likelihood of a claim’s success prior to discovery. But the very characteristics of the procedural changes leading up to Twombly and Iqbal – fewer trials, an increase in private adjudication such as arbitration, pervasive secrecy, and increased use of summary judgment – also make it far less likely that judges will have the experience necessary to reliably apply plausibility pleading. In the absence of relevant information, judges are likely to fall back on heuristics that will take them farther from an accurate decision on the merits. The result, I contend –one that is confirmed by the empirical data available to date – will be an increased dismissal of cases that is essentially random rather than merit-based.

Keywords: pleading, plausibility, Iqbal, Twombly, cognitive bias,

Suggested Citation

Reinert, Alexander A., The Burdens of Pleading (March 18, 2014). University of Pennsylvania Law Review, Vol. 162, 2014, Cardozo Legal Studies Research Paper No. 423, Available at SSRN: https://ssrn.com/abstract=2411065 or http://dx.doi.org/10.2139/ssrn.2411065

Alexander A. Reinert (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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New York, NY 10003
United States

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