The Scientific Impossibility of Plausibility

• Publication year: 2021

90 Nebraska L. Rev. 435. The Scientific Impossibility of Plausibility

The Scientific Impossibility of Plausibility

Rory Bahadur(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 436

II. What the Supreme Court Claims Plausibility is and is Not ................................................... 438

III. The Impossibility of Plausibility ....................... 441
A. Ignored Pleadings ................................. 441
1. The Pre-Iqbal Possibility of Consistency between Twombly and Swierkiewicz ..................... 441
2. The Swierkiewicz Pleadings .................... 447
B. Mathematics ...................................... 456
1. Plausibility as Bayesian Probability Analysis . . . 456
2. Locating Plausibility on the Zero-to-One Probability Scale .............................. 465
i. Plausibility is no Higher than .51 on the Zero-to-One Probability Scale ............... 465
ii. Plausibility is a More Likely than not Analysis ................................... 466
3. Plausibility's Impropriety at Pleading and Propriety at Summary Judgment .............. 471
C. Neuroscience and the Myth of Empathetic Judging. 476
1. Human Nature as a Barrier to Empathetic Judging ....................................... 476
2. Judicial Nurture as a Barrier to Empathetic Judging ....................................... 478

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D. The Impossibility of Plausibility's First Prong ...... 481
1. Separating Law from Fact is Impossible ........ 481
2. The Fallacy of Context Specific Factual Amplification .................................. 484
E. The Similarity of Plausibility and Credibility ...... 489
F. Unacceptable Procedural Rule Conflation .......... 491
1. Conflation of Rules 11 and 12 .................. 491
2. Conflation of Rules 8 and 9(b).................. 496

IV. Conclusion ............................................ 500

I. INTRODUCTION

This interdisciplinary Article employs a scientific approach to euthanize any suggestion that plausibility pleading is empirically supportable. In the Twombly (fn1) and Iqbal (fn2) decisions in 2007 and 2009, the Supreme Court replaced the liberal notice pleading standard of Conley v. Gibson (fn3) with a heightened requirement(fn4) that pleadings must be plausible to survive a motion to dismiss.(fn5)

Unlike previous scholarship, I address plausibility in light of a broader defect plaguing all legal theory; courts are not required to defend their hypotheses or legal theories in the same empirical manner as scientists.(fn6) For example, lower courts and practitioners alike are forced to assume and accept the existence of the plausibility standard simply because it was conjured by the Supreme Court. Admittedly, a scientific perspective may limit development of the law, but it ensures that judges, scholars, and legal practitioners are practicing a body of law which at least partly reflects the reality and limitations of our physical universe. This Article demonstrates plausibility pleading is devoid of any connection to that reality.

The Article begins with a brief analysis of what the language of Iqbal and Twombly claims plausibility pleading is, followed by a careful examination of the additional subtext in the decisions which explains what plausibility is not.(fn7) I demonstrate that the most conspicuous and important aspect of this subtext is the significant judicial effort the Twombly Court expended to emphasize the consistency

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of its decision with the 2002 Swierkiewicz (fn8) decision, in which a unanimous Supreme Court reaffirmed the previously existing motion to dismiss standard.(fn9)

Next, in accord with the Article's unique approach, I examine the actual pleadings in the Swierkiewicz case.(fn10) Therein, the analysis of the pleadings reveals the absolute falsity of the Supreme Court's claim that Twombly is consistent with Swierkiewicz.(fn11) I explain how the motion to dismiss in Swierkiewicz expressly argued for the application of the identical plausibility standard adopted in Twombly and Iqbal,(fn12) and I further explain how this is the same standard the Court unanimously rejected seven years prior in Swierkiewicz as being beyond its power to implement.(fn13)

Using an analogy to Bayesian mathematical theory, the Article demonstrates, despite the Supreme Court's claim to the contrary, that the plausibility analysis is a probability analysis.(fn14) I argue this probability analysis is abhorrent to the constitutionally mandated division of labor between judge and jury in the civil system,(fn15) and it represents a radical, normative shift in established pleading standards.(fn16)

The Article next applies modern neuroscientific research discussing limits on human beings' ability to empathize, and it specifically discusses the existence of a genetic predisposition to bias against phe-notypically distinct individuals.(fn17) I explain how this research dispels the scholarly suggestion that plausibility and its encouragement of "judicial experience and common sense"(fn18) is a waypoint to a laudable, empathy based, utopian judicial state.(fn19)

Additionally, the Article demonstrates the first step in determining plausibility-the separation of law from fact is widely acknowledged, including by the Supreme Court itself-is as an impossible feat.(fn20) Further, the Article reveals how markedly similar plausibility is to a constitutionally prohibited credibility analysis.(fn21)

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Finally, the Article suggests plausibility analysis is a nonsensical amalgam of Federal Rules of Civil Procedure 8, 9(b), 11 and 12.(fn22) I demonstrate any pleading deemed not plausible pursuant to Rule 12(b)(6) also violates Rule 11.(fn23) Further, I show that the pleading standard of Rule 8 is now indistinguishable from and possibly higher than Rule 9(b)'s heightened pleading standard.(fn24)

II. WHAT THE SUPREME COURT CLAIMS PLAUSIBILITY IS AND IS NOT

As a pleading standard, plausibility was birthed in Twombly and developed in Iqbal.(fn25) Twombly involved a suit against a number of telecommunication companies alleging an illegal agreement or conspiracy of noncompetitive behavior, violative of antitrust law, had harmed consumers.(fn26) Twombly overruled the language of Conley, which for years had been the mantra by which federal courts determined whether to dismiss a complaint.(fn27) The Conley standard, however, was reaffirmed by the Supreme Court in Swierkiewicz in 2002.(fn28) The Swierkiewicz decision is remarkable because a unanimous Supreme Court reaffirmed that it was without constitutional power to change the pleading standard announced in Conley.(fn29) Under Conley, a complaint would not be dismissed unless it appeared beyond doubt that a plaintiff could develop no set of facts in support of the complaint.(fn30)

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Twombly altered this liberal test for determining the legal sufficiency of a complaint.(fn31)

Iqbal followed Twombly and was more politically charged. It involved a post-September 11th lawsuit brought by Arab-Muslim detainees against the federal attorney general and the head of the FBI.(fn32) It alleged executive-level, illegal, race-based, and discriminatory policies-developed and enforced by the two named defendants-resulted in their detention.(fn33) Now, post-Iqbal, in determining the legal sufficiency of a complaint under a Rule 12(b)(6) motion, a federal district court judge must determine whether a complaint is plausible.(fn34) If not, a complaint is dismissed as failing to state a claim upon which relief can be granted.(fn35)

Determining the plausibility of a complaint is a two-step process.(fn36) First, a court must separate factual content from nonfactual content (legal conclusions, etc.).(fn37) The non-factual allegations are ignored as if they do not exist for the purposes of determining the sufficiency of the complaint.(fn38) The justification for ignoring non-factual allegations

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is that only well-pleaded facts, as opposed to well-pleaded allegations of the non-factual variety, are entitled to the presumption of truth at the motion to dismiss stage.(fn39) Second, the process involves a determination of whether the factual content of the complaint-taken as true, examined in isolation, and afforded the favorable presumption mentioned above-demonstrates a plausible entitlement to relief.(fn40)

Under this two-step process, the Supreme Court expanded on the definition of plausibility described above.(fn41) According to the Court, a complaint which contains factual allegations consistent with the theory of alleged recovery establishes sheer possibility of entitlement to relief, but falls short of the line between possibility and plausibility.(fn42) Only a complaint establishing plausible entitlement to relief will survive a motion to dismiss, but one which merely establishes possibility of relief is dismissed without discovery.(fn43)

The Court further explained that a complaint is plausible only when the factual allegations permit, not merely an inference, but a reasonable inference the plaintiff was harmed as a result of the alleged cause of action.(fn44) Despite these references to possibility and plausibility, the Court explains it is not engaging in probability analysis.(fn45)

Finally, and most remarkably in my opinion, is the great judicial effort the Supreme Court expended in the Twombly opinion...