Plausible Denial : Should Congress Overrule Twombly and Iqbal ?

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,”1 to additionally require that all civil pleadings state a claim that is “plausible.”2 In Bell Atlantic Corp. v. Twombly, the Court rejected ...

When Kelo Met Twombly-iqbal: Implications for Pretext Challenges to Eminent Domain

Material Facts in the Debate Over Twombly and Iqbal

This Article presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions. Using nearly 2000 randomly selected employment discrimination and contract cases, the Article tries to assess the performance of Twombly and Iqbal, which raised the federal pleading standard, in filtering cases according to merit. This Article begins by explaining how such data migh...

The Hidden Costs of Pleading Plausibility: Examining the Impact of Twombly and Iqbal on Employment Discrimination Complaints and the Eeoc’s Litigation and Mediation Efforts

“The effect of the Court’s actions will no doubt be to deny many plaintiffs with meritorious claims access to the federal courts and, with it, any legal redress for their injuries. . . . I think that is an especially unwelcome development at a time when, with the litigating resources of our executive-branch and administrative agencies stretched thin, the enforcement of federal antitrust, consum...

Overruling in the High Court of Australia in Common Law Cases

[Our article aims to identify principles to guide the High Court of Australia when it is considering whether or not to overrule one of its previous decisions in a common law setting. We introduce two accounts of overruling drawn from the scholarly literature on the subject and, in light of those accounts, we evaluate the approach to overruling taken by the Court in the recent common law case of...