Cross-posted from ACSblog.

The Center for Progressive Reform (CPR) today released a white paper examining “plausibility pleading”-the Supreme Court’s heightened pleading standard that plaintiffs must satisfy in order to bring their claims in federal court. The paper, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, comes after the Court’s decision one year ago this week in Ashcroft v. Iqbal that this standard applies to all types of federal cases. The Court first created this standard in Twombly v. Bell Atlantic, three years ago.

Iqbal and Twombly will lead to the dismissal of meritorious cases, thereby weakening the civil justice system and making it more difficult to hold businesses or the government accountable for wrongful actions. Increased dismissals will also deprive federal regulators of vital information needed for improving the regulations that protect people and the environment. Our paper therefore calls on Congress to pass legislation to reverse these decisions.

The pleading standard plays an important role in civil litigation. Would-be plaintiffs unable to draft a complaint that satisfies the pleading standard aren’t able to bring their case before a judge or jury in federal court. If the pleading standard is too lenient, too many non-meritorious cases will be able get into court, clogging up the federal judiciary. But if the standard is too high, meritorious cases will be terminated early, denying justice to deserving plaintiffs.

For nearly seventy years, the Federal Rules of Civil Procedure — the set of rules that govern the conduct of federal civil litigation — charted an effective middle course by requiring plaintiffs to assert a set of facts that explained how the defendant had harmed them. This approach left the evaluation of the pleading’s factual sufficiency to the discovery stage, permitting a plaintiff to use discovery to obtain information relevant to the case.

Twombly and Iqbal disrupted this well-calibrated process for evaluating the legal and factual sufficiency of a case during the pretrial process. These cases adopt a heightened pleading requirement-plausibility pleading-that allows a judge, largely in his or her discretion, to evaluate whether a plaintiff in effect has proof of the allegations in the complaint. The result will be that deserving claims will be wrongly dismissed-and have already been dismissed-at the pleading stages.

The white paper identifies troubling aspects of plausibility pleading, including:

• In Twombly and Iqbal the Court ignored both the plain language of the Federal Rules of Civil Procedure and its overarching goal of resolving cases on their merits following an adequate opportunity for full disclosure of all relevant information.
• Twombly and Iqbal overturn more than 50 years worth of well-established precedent interpreting and applying this plain language
• By raising the pleading standard through a judicial decision, the Court has deviated from Congress’ legislative instructions in the Rules Enabling Act to employ specific rulemaking procedures for changing a Federal Rule of Civil Procedure rather than making such changes through judicial decisions.
• A recent study of randomly selected federal cases ruling on the sufficiency of pleadings found that the number of cases that have been dismissed for an insufficient complaint has increased from 46 percent of cases to 56 percent of cases. The same study also found that dismissals at the pleading stage have increased for cases involving torts, civil rights, and specified statutory laws (e.g., environmental laws).