Not the Same Old Story: Using Narrative Theory to Understand and Overcome the Plausibility Pleading Standard

Abstract

The Supreme Court’s Bell Atlantic v. Twombly and Ashcroft v. Iqbal decisions announced a new standard for pleading in civil cases governed by Rule 8(a), requiring that a pleading demonstrate a right to relief that is “plausible.” The plausibility standard has been criticized for requiring information that is beyond the reach of many plaintiffs and for conferring excessive discretion upon judges. This Article presents a novel perspective on the plausibility pleading standard, arguing that narrative theory — the study of the composition, transmission, and reception of stories — helps explain the Court’s adoption of the plausibility standard. The Article proposes that greater reliance on narrative can help scholars, litigants and judges understand the plausibility standard. The narrative account of plausibility resolves the main criticisms of plausibility and offers a promising set of tools for complying with the standard. The Article includes analysis of cases that have survived a motion to dismiss post-Twombly and Iqbal, showing that use of narrative techniques does help litigants overcome the plausibility standard. The Article also analyzes cases that have been dismissed pursuant to Rule 12(b)(6) for failing to state a claim, demonstrating that litigants ignore narrative at their peril. The Article pays special attention to civil rights lawsuits, as the plaintiffs in such cases stand to be affected uniquely by the plausibility standard.

Keywords: civil procedure, pleading, heightened pleading, notice pleading, Twombly, Iqbal, Conley, Rule 8, Federal Rules, plausible, plausibility, narrative, storytelling

JEL Classification: K00, K10, K4, K40, K49, K41