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Article
Plausibility Pleading
Boston College Law Review
  • A. Benjamin Spencer, Washington and Lee University School of Law
Document Type
Article
Publication Date
1-1-2008
Disciplines
Abstract

Last Term, in Bell Atlantic Corp. v. Twombly, the U.S. Supreme Court dramatically reinterpreted Federal Rule of Civil Procedure 8(a) (2), which requires a "short and plain" statement of a plaintiffs claim. The Court was unabashed about this change of course: it explicitly abrogated a core element of its 1957 decision in Conley v. Gibson, which until recently was the bedrock case undergirding the idea that ours is a system of notice pleading in which detailed facts need not be pleaded. Departing from this principle, the Court in Twombly required the pleading of facts that demonstrate the plausibility of the plaintiff's claim. This Article explicates and offers a critique of the Court's new jurisprudence of plausibility pleading. The Court's new understanding of civil pleading obligations does not merely represent an insufficiently justified break with precedent and with the intent of the drafters of Rule 8. It is motivated by policy concerns more properly vindicated through the rule amendment process, it places an undue burden on plaintiffs, and it will permit courts to throw out claims before they can determine their merit. Ultimately, the imposition of plausibility pleading further contributes to the civil system's long slide away from its original liberal ethos towards an ethos of restrictiveness more concerned with efficiency and judicial administration than with access to justice.

Citation Information
A. Benjamin Spencer, Plausibility Pleading, 49 B. C. L. Rev. 431 (2008).