Plausibility Pleading Revisited and Revised: A Comment on Ashcroft V. Iqbal

Article excerpt

This Article critically examines the Supreme Court's most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v. Iqbal, decided in May 2009. The Article supplements and extends the analysis in my recent article, Twombly, Pleading Rules, and the Regulation of Court Access, which examined the Supreme Court's seminal Bell Atlantic Corp. v. Twombly decision and evaluated the costs and benefits of screening meritless suits at the pleading stage. In this Article, I argue that Iqbal does much more than clarify and reinforce key points in Twombly; it takes Twombly's plausibility standard in a new and ultimately ill-advised direction. My criticism has two parts. First, Iqbal adopts a "two-pronged approach" that filters legal conclusions in the first prong before applying the plausibility standard to factual allegations in the second. I argue that this two-pronged approach is incoherent. There is only one prong: the judge must determine whether the complaint, interpreted as a coherent whole, plausibly supports each element of the legal claim. The second problem with Iqbal runs deeper. Iqbal screens lawsuits more aggressively than Twombly, and does so without adequate consideration of the policy stakes. In particular, Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits. The thick screening model is highly problematic on policy grounds, even in cases like Iqbal that involve qualified immunity. Moreover, the Supreme Court is not institutionally well equipped to decide whether strict pleading is desirable, especially when it implements a thick screening model. Those decisions should be made through the formal Rules Enabling Act process or by Congress.


Court access has become a matter of intense concern today in the wake of two major pleading decisions of the United States Supreme Court. The first, Bell Atlantic Corp. v. Twombly, (1) held that a plaintiff must allege sufficient facts to state a "plausible" claim for relief. (2) Twombly's critics--and there are many--complain that the plausibility standard unfairly impedes court access for meritorious suits. (3) The second decision, Ashcroft v. Iqbal, (4) issued on May 18, 2009, applies the plausibility standard to allegations that are less obviously deficient than those in Twombly and, in so doing, signals an even stricter approach to pleading requirements. Provoked by the Iqbal decision, many critics now believe that it is imperative to undo the effects of plausibility pleading. On July 22, 2009, Senator Arlen Specter introduced the Notice Pleading Restoration Act (5) aimed at reinstating the liberal notice pleading standards existing prior to Twombly, and on November 19, 2009, Representative Jerrold Nadler introduced the Open Access to Courts Act (6) for the same purpose.

I discussed Twombly, plausibility pleading, and court access in a previous article. (7) This Article extends that earlier work by examining what Iqbal adds to Twombly. Although the Court purports to be applying Twombly's plausibility standard, a fair reading of the majority opinion shows that Iqbal's version of plausibility is significantly stricter than Twombly's. Moreover, the Iqbal Court enlists plausibility for a broader purpose. Twombly uses plausibility to screen only for truly meritless suits, but Iqbal uses it to screen for weak lawsuits too. The difference is crucial. Screening weak lawsuits raises much more complex and controversial policy questions than screening meritless suits, and the Supreme Court is not well equipped institutionally to address those policy questions. They are better left to the committees involved in the formal rulemaking process or to Congress.

Moreover, although a response to Iqbal is needed, neither of the proposed bills is the right response. It is not at all clear that the best approach is to restore pre-Twombly law. …