Reconstructing Pleading: Twombly, Iqbal, and the Limited Role of the Plausibility Inquiry

Although critics have generally failed to appreciate the limited role of the plausibility inquiry, it is still necessary in some cases. I will therefore, in the discussion of plausibility within the three-step framework, provide a general defense of Twombly and Iqbal by recasting the decisions in light of a plaintiff‘s burden to certify to a court that the factual contentions in a complaint ―will likely have evidentiary support under Rule 11. Under this view of the plausibility inquiry, a court acts as a neutral third-party that simply evaluates a plaintiff‘s ability to predict her own likelihood of success. Instead, a court engaging in the plausibility inquiry gauges whether the plaintiff has accurately predicted that his or her claim ―will likely have evidentiary support.8 To give a proper context to these arguments, I will begin in Part I by providing a very short introduction to pleading practice before the Supreme Court‘s decisions in Twombly and Iqbal.

In Part II, I will then describe the Twombly and Iqbal cases in detail. After providing this introductory discussion, I will proceed in Part III to develop the arguments outlined above before briefly concluding in Part IV with a short summary.