Professor Stephen Yeazell once wrote, “A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions.”* One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious claims that fail to offer sufficient specificity and support at the pleading stage. But some have questioned whether this purported threat is more perceived than real. Indeed, this doctrinal shift has been defended in several ways that each suggest—in their own way—that the critical response to Twombly and Iqbal may be much ado about little or nothing.
These apologies for the doctrinal shift, if you will, generally fall into three categories. The first consists of arguments suggesting that the standard has not really changed at all, which I will refer to as the “consistency” defense. The second group concedes that there has been a change but argues that the change has not had or will not have a substantial impact; I will call this the “inconsequentiality” defense. The final category contains those arguments asserting that the changes are consequential but in a good way, meaning that the strengthening of pleading standards was warranted and will be beneficial to the litigation system. I refer to this type of argument as the “efficiency” defense.
This essay responds to each of these apologies, finding that the consistency defense is doctrinally unsound, that the inconsequentiality defense is doubtful (if not counterfactual), and that the efficiency defense is misguided, given the patent overinclusiveness and subjectivity of the plausibility doctrine.60-6-9