Discoverymania: Plausibility Pleading as Misprescription

68 Pages Posted: 8 Dec 2014 Last revised: 2 Dec 2015

See all articles by Fabio Arcila, Jr.

Fabio Arcila, Jr.

UIC-John Marshall Law School; Touro University - Jacob D. Fuchsberg Law Center

Date Written: 2015

Abstract

In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly underinclusive because it does nothing to impact defendant discovery abuse. Additionally, the Court emphasized the universality of the new plausibility pleading standard in a qualified immunity context that may have caused it to misconceive a right to avoid discovery. All of this has greater implications for access to justice than for addressing the perceived deficiencies in our discovery procedures that so concerned the Court.

Discovery reform — not pleading reform — is a better option. Though the Rules Advisory Committee has recently campaigned to reform discovery, it has unwisely sought to bring discovery into accord with plausibility pleading, as evidenced by proposals to tighten and reduce discovery and to eliminate form complaints. These proposed reforms are misguided because what is needed is not less discovery but better-tailored discovery. In an effort to broaden the discussion, this article closes by surveying numerous discovery reform options.

Keywords: plausibility pleading, discovery, Twombly, Iqbal, pleading doctrine, Federal Rules of Civil Procedure, federal judges

Suggested Citation

Arcila, Jr., Fabio, Discoverymania: Plausibility Pleading as Misprescription (2015). 80 Brook. L. Rev. 1487 (2015), Touro Law Center Legal Studies Research Paper Series No. 15-38, Available at SSRN: https://ssrn.com/abstract=2535072 or http://dx.doi.org/10.2139/ssrn.2535072

Fabio Arcila, Jr. (Contact Author)

UIC-John Marshall Law School ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

Touro University - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States
(631) 761-7111 (Phone)

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