The burdens of pleading.

• Author: Reinert, Alexander A.

INTRODUCTION I. FROM CONLEYTO IQBAL II. (MIS)FITTING PLAUSIBILITY PLEADINGS INTO OUR CURRENT PROCEDURAL LANDSCAPE A. The Minimal Experience of Judges in Merits-Based Determinations 1. The Vanishing Trial 2. The Rise of Private Adjudication 3. Secret Settlements 4. Access to Discovery 5. A Potential Counter-Narrative: Summary Judgment B. Plausibility Pleading and Cognitive Bias CONCLUSION "Our attitude towards pleading formalities will be largely determined by what we expect of the pleadings."

--Hon. Charles E. Clark (1)

INTRODUCTION

Twenty-five years ago, at a conference held at Northeastern University School of Law marking the fiftieth anniversary of the Federal Rules of Civil Procedure, pleading was invoked more often as a model of the Rules' commitment to merits adjudication than as a problem to be solved. (2) Although participants adverted to an ongoing debate about whether more should be demanded of pleadings, they mostly worried about the effect of other procedural reforms on access to justice. (3) After all, there were many recent reforms to debate: amendments to Rule 11, restrictions on class actions, the Supreme Court's Rule 56 trilogy, limitations on discovery, and tightened standing requirements. (4) But when it came to pleading, participants took as a given the liberal notice pleading regime established by Conley v. Gibson, (5) even as they recognized that some lower courts had experimented with non-trans-substantive pleading regimes for particular categories of cases. (6)

For the balance of the last quarter century, the conference participants' overall optimism about the state of pleading would prove sensible. Thrice the Supreme Court emphasized the importance of notice pleading and the illegitimacy of attempts to alter the pleading standards outside of the rulemaking process. (7) Most lower courts that had flirted with heightened pleading standards for specific categories of cases eventually beat a retreat, if not a hasty one. (8)

Yet, with the announcement of Bell Atlantic Corp. v. Twombly (9) and Ashcroft v. Iqbal, (10) the Supreme Court changed what courts expect of notice pleading. Whether one calls it "the new summary judgment motion," (11) "new" or "heightened" pleading, (12) or (as I will use throughout this paper) plausibility pleading, the burdens of pleading have changed. Many scholars have already written about the burden plausibility pleading imposes upon claimants. (13) As most commentators have argued, the introduction of plausibility pleading is congruent with many other restrictions on courthouse access that have emerged over the past fifty years. (14) In this Article, I do not focus on the pleading burden as it is received by and applied against claimants, nor do I make additional arguments that plausibility pleading limits access to the courthouse. Instead, I argue that the burden of plausibility pleading also falls on judges, and that judges are poorly situated to shoulder that burden--especially when one considers how restrictions on courthouse access and other changes have reshaped the nature of litigation in the federal courts.

To preview my argument briefly, plausibility pleading formally asks judges--for the first time since the advent of the Federal Rules--to engage in a merits-based analysis at the pleading stage based on their "judicial experience and common sense." (15) Judges are expected to engage in this inquiry with only the factual allegations in the complaint at their disposal. Putting aside the difficulty of conducting this analysis under the best of circumstances, our federal judges have extremely limited judicial experience to apply to merits-based decisions. The number of trials, the ultimate arbiter of merit, has fallen precipitously in the past fifty years. (16) Trials have been replaced by settlements (the terms of which are often secret, even to the judge handling the case), alternative dispute resolution (with outcomes that judges may review only for arbitrariness, if they review them at all), and summary judgment (a poor substitute for trial). (17) With these gaps in judicial experience, a judge is left to compensate with "common sense," relying on heuristics that may interfere with accurate decisionmaking. (18)

This argument is not made to denigrate federal judges but rather to identify the impoverished landscape of actual merits-based determinations upon which federal courts can draw to assess the plausibility of new claims. Moreover, the argument should be familiar to even casual readers of Twombly, there, the Court determined that judges were incapable of managing discovery given their limited knowledge and understanding of the cases before them. (19) Thus began the shift toward plausibility pleading. If one accepts Twombly's reasoning, however, it is counterintuitive to ask courts to do more with less by requiring a merits-based determination at the pleading stage.

The structure of this Article is straightforward. In Part I, I review the changes wrought by plausibility pleading. In Part II, I present the core of my argument: namely, that it is unrealistic to expect judges to shoulder the new burden of plausibility pleading given the structural and practical changes in the work of the federal judiciary over the past fifty years. I conclude the Article with remarks about the links between different procedural eras and their would-be reformers.

1. FROM CONLEY TO IQBAL

   Iqbal (20) and its predecessor, Twombly, (21) introduced a change in federal pleading standards that had, until then, remained essentially static for decades. (22) In 1938, the Federal Rules of Civil Procedure established a "notice pleading" system for federal courts via Rule 8(a)(2), abandoning technical rules applied in both common law and code pleading jurisdictions. (23) In 1957, the Supreme Court explicitly recognized the notice pleading system in Conley v. Gibson. (24) Under this regime, complaints satisfied Rule 8(a)(2) without providing detailed facts, so long as they provided adequate notice to the defendant of the nature of the suit. (25) In addition, a motion to dismiss pursuant to Rule 12(b)(6) would not be granted "unless it appealed] beyond doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would entitle him to relief." (26) Rule 12(b)(6) was to be invoked in those rare cases in which no viable legal theory supported the plaintiff's claim. (27)

   Notice pleading remained the standard, subject to some detours by lower courts, (28) for the fifty years between Conley and Twombly. The Supreme Court occasionally found it necessary to remind lower courts that the pleading rules could not be changed outside the rulemaking process, (29) even as it acknowledged that heightened fact pleading might have "practical merits." (30) Twombly was the first sign of change, and I will highlight three significant aspects of the decision. First, the Court "retired" the language from Conley that tested a Rule 12(b)(6) motion by whether "the plaintiff can prove no set of facts" (31) consistent with the defendant's liability. (32) Second, in its place, Twombly substituted a "plausibility" inquiry, (33) a term that was new to Rule 12 adjudications. (34) Finally, the Twombly Court justified its new standard as necessary to protect defendants from the threat of burdensome discovery that extracts settlements even for claims of dubious merit. (35) "Careful case management" by district court judges had not worked, according to the Court, necessitating recourse to plausibility pleading standards. (36)

   Twombly was not the last word, however, because some observers and lower courts limited its reach to cases in which the costs of discovery were likely to be high and settlement-coercing. (37) Iqbal resolved this short-lived dispute by making it clear that plausibility pleading applied to all civil cases, not just antitrust claims. (38) Iqbal also articulated a two-step process for evaluating the sufficiency of a complaint. (39) First, courts must review each allegation in a complaint and exclude from consideration those allegations stated in a "conclusory" fashion. (40) Second, and consistent with Twombly, courts must conduct a plausibility analysis that assesses the fit between the nonconclusory facts alleged and the relief claimed. (41) The judge may assess plausibility by calling on her "judicial experience and common sense," (42) a surprising turn from the judicial role contemplated in Conley. (43) In sum, and most important for this Article, plausibility pleading depends on the judge to conduct a preliminary evaluation of the likelihood of a claim's success. (44) Plausibility pleading has taken the federal judicial world by storm. Iqbal already has been cited by approximately 70,000 reported opinions in less than five years, while Twombly has been cited 93,000 times over about six and a half years. (45) The cases have also earned a fair share of academic attention. Many scholars have criticized Iqbal and Twombly for altering the meaning of the Federal Rules outside of the traditional procedures contemplated by the Rules Enabling Act. (46) Others have lamented the vague and ill-defined standard for its break from history and difficulty of application. (47) Scholars have even questioned the constitutionality of the plausibility analysis. (48) Some academics, however, find at least a kernel of opportunity in the advent of plausibility pleading. (49) Almost all commentators agree that Iqbal and Twombly break from the liberal pleading doctrine enunciated in 1957 by Conley. (50)

   In conclusion, as others have argued, plausibility pleading has injected instability into the spectrum of pleading. (51) Plausibility pleading resembles other heightened pleading regimes in some respects, but only enough to sow confusion and doubt as to its application. (52) Perhaps if one squints enough, the plausibility inquiry looks like summary judgment, (53) but that provides little...