A Theory of Pleading, Litigation, and Settlement
Social Science Research Network
The plausibility pleading regime of Twombly and Iqbal has generated continuing controversy and concern over its effects on the ability of plaintiffs, particularly certain categories of civil rights plaintiffs, to bring cases in federal court. I assess the effects of plausibility pleading by undertaking a novel thought experiment: What would a plaintiff's filing and pleading decisions look like in a world with no pleading standard at all? In other words, what if there were no motions to dismiss
... or failure to state a claim, and every filed case could reach discovery? I show that in this hypothetical world, plaintiffs usually file factually detailed, plausible complaints or do not file at all. In short, pleading standards rarely matter. Perhaps most surprisingly, this is true even for cases in which information asymmetries favor the defendant. Plaintiffs' attorneys, not judges, are the gatekeepers to court, and pleading practices are driven not by doctrine but by settlement strategy. This analysis generates empirical predictions, which find support in a wide range of qualitative (though admittedly not conclusive) evidence. Further, this thought experiment may turn the normative critique of Twombly and Iqbal on its head: plausibility pleading may advance, rather than undermine, the "liberal ethos" of the Federal Rules. Plausibility pleading can make it easier for plaintiffs with risky but worthwhile cases to have their day in court.