Applause for the Plausible
Why has the word “plausible” come to define federal civil litigation? In recent years, the U.S. Supreme Court supplemented longstanding pleading standards under the Federal Rules of Civil Procedure, which require a “short and plain statement of the claim,” to additionally require that all civil pleadings state a claim that is “plausible.” In Bell Atlantic Corp. v. Twombly, the Court rejected other possible words that might describe the newly tightened pleading standard, such as “reasonable” or “probable.” To the dismay of many judges, lawyers, and other observers, the Court did not define “plausible,” except to add that “plausible” pleadings “nudge their claims across the line from conceivable to plausible.” In Ashcroft v. Iqbal, the Court again did not define “plausible,” except to assert that a “plausible” claim must not be “conclusory” in nature. This Essay explores the complex and contradictory meanings of the word “plausible.”
Furthermore, this Essay applauds the Supreme Court’s selection of such an equivocal and conflicted word as the gateway to federal civil litigation. As I describe, “plausible” means “fair” or “reasonable,” but perhaps only in a superficial sense; what is “plausible” might in fact be “specious” or used as a “pretext.” The word is immune to careful definition. Because of its ambiguity, it was well selected to expand judicial discretion to dismiss civil cases. In specific areas of federal civil litigation, the Court has recently broadened judges’ discretion to dismiss a wide range of civil petitions: civil rights claims, habeas petitions, class action certification petitions, and more. In those contexts, the Court uses words like “reasonable” in ways that bend their meaning, suggest more objectivity than warranted, and create genuine confusion between doctrines by using the same word in different ways.
Despite substantial confusion over the choice of the word “plausible” to govern pleading in federal civil litigation, at least one can say that the word itself captures the essence of the problem rather than disguising it. Whether the resulting discretion conferred on district judges is itself warranted or desirable is a very different question, and a matter of real concern. Because “plausibility” pleading enhances judicial discretion, the meaning of “plausible” may increasingly depend on judicial practice and the litigation contexts where the word is used. Nonetheless, rather than viewing the word selection as an accident or a misplaced reference, I suggest that the word was deliberately chosen to be deeply . . . plausible.
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Glynn S. Lunney, Jr.