Law Quarterly

Plausibility Standards and the Limitation of Access to Courts

By Gordon Yang


If there is one thing to be found from the American people’s view of law as embedded in popular culture, it is the common phrase “I’ll sue you”. Most of the time it is taken lightly, and not perceived as a legitimate threat backed by a person prepared to go to court. This is perhaps a reflection of the difficulties in translating abstract justice to the expensive and time-consuming remedies offered by our already backed up judicial system. For the few occasions that we ever need to resort to formal legal action, however, it is always reassuring that there is such a recourse open to us. On the other hand, a judicial system works efficiently when it effectively screens out cases that are trivial. That is what ruling in Bell Atlantic Corp. v. Twombly (2007) sought to accomplish, and in Ashcroft v. Iqbal (2009) the screening process was made to be even stricter. These two Supreme Court cases are two of the most cited because of the effect they had on procedural law, and we will examine how exactly they did this.

The fundamental issues the two cases grapple with has its origins in the fact-conclusion debate. Nineteenth century legal code was a reform to simplify the outdated common-law system that employed formulaic, “hyper-technical” forms of action. By requiring “a plain and concise statement of the facts constituting each cause of action”, the plaintiff only had to allege verifiable facts in her complaint and left it to the court to apply the law. One criticism of such an approach was made by Cook, who believed that pleading facts for legal purposes naturally involves using legal concepts and categories, and that there was no readily drawn distinction between statements of fact and conclusions of law (Bone, 862-863). The drafters of the Federal Civil Rules of Procedure (1938) took this into consideration, leaving out the fact part, so that Rule 8(a) requires no more than

“a short and plain statement of the grounds for the court’s jurisdiction”


Until Bell Atlantic Corp. v. Twombly, Conley v. Gibson (1957) interpreted Rule 8(a) as: a case should not be dismissed at the pleading stage “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief” (Colleen, 405). The standard approach then was notice pleading, where the sole function of a complaint was to give fair notice to the defendant of what the dispute was generally about (Bone, 853). After Twombly, pleading standards were heightened so that meritless claims would be screened out by a plausibility test and cases were no longer heard if it was merely possible that the alleged had committed a crime. The majority in Twombly shared the concerns of the nineteenth century reformers clearly shown through its use of language, which required plaintiffs present “more than conclusions” and not just a “formulaic recitation of the elements of a cause of action”. Still, Twombly emphasized that a case should not be dismissed on the basis of low likelihood of trial success or improbable alleged facts. It “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement” (Bone, 875). In contrast, Iqbal rejects weak cases due to its two-pronged test.

In Ashcroft v. Iqbal, a complaint was brought against former AG Ashcroft, and FBI Director Mueller by Iqbal, alleging that he was designated as a person of “special interest” based on his race, religion, and national origin and detained for that reason as a result of their policies. Although it is plausible that the defendants had targeted him based on those factors, the Court found a more plausible, legal basis for the complained of conduct: the high priority of law enforcement in the wake of the attacks of September 11 and his potential connection to terrorists. In other words, had the plaintiff brought more convincing evidence to prove intentional discrimination, then the case might have gone on to discovery.

The first prong brings back the debate on the distinction between facts and conclusions. The two are only different in degrees of factual specificity, and allegations are conclusions when they state facts at too high a level of generality (Bone, 868). Iqbal doesn’t clarify on this issue, but makes it worse. The first prong separates the complaint so that each allegation is taken individually, and trial success can only be predicted by considering the case as a whole. That is why Justice Souter who wrote the opinion for Twombly, dissented in Iqbal, stating that its “key allegations are actually quite specific when read in the context of the complaint as a whole” (Bone, 861). Twombly didn’t dismiss on grounds of trial success, but Iqbal does as, shown in the statement

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

(Bone, 875). In other words, the plaintiff has to have enough to convince the court that the defendant may be liable, and not just enough to go onto discovery.

The two-prong approach is especially problematic for cases that require private information from the defendant(s) i.e. anti-trust and civil rights cases, and puts the plaintiff in a dilemma. The plaintiff must allege more detail before discovery, but the details he must allege is very difficult to obtain without discovery. This is contrary to one of the fundamental values of the federal procedural system, which is that potentially valid complaints should not be thrown out because the plaintiffs cannot allege all of the relevant facts prior to discovery (Colleen, 406). Only after the judge separated facts from conclusions, he decides if the remaining facts are plausible, and this is done through the second prong which is divided into a “checklist” approach which essentially checks if there is enough factual content, and the “common-sense” approach which asks the judge to draw reasonable inferences and decide based on judicial experience. In a follow-up article we try to perform the second-prong of the plausibility test through machine learning.

There have been several observations of the deviation of district court rulings from the Supreme Court’s decision in Iqbal. One is that they didn’t apply the plausibility standard in the same manner as they did in Twombly and Iqbal, which is to consider the more plausible alternative (Brescia, 261). More importantly, if we examine the empirical effects Iqbal had on lower courts in the period immediately after it was passed, we will notice that the two-pronged test was applied in less than half of the cases sampled, and often the first-prong was not applied together with the second-prong. All things considered, the dismissal rate was found to have increased after Iqbal. A possible (and optimistic) explanation for the district court’s behavior is that it is unreasonable to expect plaintiffs to provide much more than an unadorned accusation, not having access to the requisite information prior to discovery (Colleen 427-428), and so they chose not to apply it since they were given the option to choose not to (Colleen, 415). Although the opinion in Iqbal could’ve been better formulated, as least it allows lower courts this level of flexibility.

One Response to Plausibility Standards and the Limitation of Access to Courts

  1. Pingback: Classifying Legal Approaches: A Machine Learning Project | Binghamton Law Quarterly

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