5 research outputs found
The Scientific Impossibility of Plausibility
This interdisciplinary Article employs a scientific approach to euthanize any suggestion that plausibility pleading is empirically supportable. In the Twombly and Iqbal decisions in 2007 and 2009, the Supreme Court replaced the liberal notice pleading standard of Conley v. Gibson with a heightened requirement that pleadings must be plausible to survive a motion to dismiss. Unlike previous scholarship, I address plausibility in light of a broader defect plaguing all legal theory; courts are not required to defend their hypotheses or legal theories in the same empirical manner as scientists. For example, lower courts and practitioners alike are forced to assume and accept the existence of the plausibility standard simply because it was conjured by the Supreme Court. Admittedly, a scientific perspective may limit development of the law, but it ensures that judges, scholars, and legal practitioners are practicing a body of law which at least partly reflects the reality and limitations of our physical universe. This Article demonstrates plausibility pleading is devoid of any connection to that reality. The Article begins with a brief analysis of what the language of Iqbal and Twombly claims plausibility pleading is, followed by a careful examination of the additional subtext in the decisions which explains what plausibility is not. I demonstrate that the most conspicuous and important aspect of this subtext is the significant judicial effort the Twombly Court expended to emphasize the consistency of its decision with the 2002 Swierkiewicz decision, in which a unanimous Supreme Court reaffirmed the previously existing motion to dismiss standard. Next, in accord with the Article’s unique approach, I examine the actual pleadings in the Swierkiewicz case. Therein, the analysis of the pleadings reveals the absolute falsity of the Supreme Court’s claim that Twombly is consistent with Swierkiewicz. I explain how the motion to dismiss in Swierkiewicz expressly argued for the application of the identical plausibility standard adopted in Twombly and Iqbal, and I further explain how this is the same standard the Court unanimously rejected seven years prior in Swierkiewicz as being beyond its power to implement. Using an analogy to Bayesian mathematical theory, the Article demonstrates, despite the Supreme Court’s claim to the contrary, that the plausibility analysis is a probability analysis. I argue this probability analysis is abhorrent to the constitutionally mandated division of labor between judge and jury in the civil system, and it represents a radical, normative shift in established pleading standards. The Article next applies modern neuroscientific research discussing limits on human beings’ ability to empathize, and it specifically discusses the existence of a genetic predisposition to bias against phenotypically distinct individuals. I explain how this research dispels the scholarly suggestion that plausibility and its encouragement of “judicial experience and common sense” is a waypoint to a laudable, empathy based, utopian judicial state. Additionally, the Article demonstrates the first step in determining plausibility—the separation of law from fact is widely acknowledged, including by the Supreme Court itself—is as an impossible feat. Further, the Article reveals how markedly similar plausibility is to a constitutionally prohibited credibility analysis. Finally, the Article suggests plausibility analysis is a nonsensical amalgam of Federal Rules of Civil Procedure 8, 9(b), 11 and 12. I demonstrate any pleading deemed not plausible pursuant to Rule 12(b)(6) also violates Rule 11. Further, I show that the pleading standard of Rule 8 is now indistinguishable from and possibly higher than Rule 9(b)’s heightened pleading standard
Law School Rankings and the Impossibility of Anti-Racism
This Article uses the U.S. News law school rankings to illustrate how powerful, invisible, and stubborn systemic racism is. This Article does not level allegations of intentionally blameworthy conduct at U.S. News, or any person or entity. More broadly, this Article does not address conscious and deliberate racism, or the examples of this type of racism with which America’s history is replete. Nor is this Article attempting to undervalue the significant impact of deliberately racist actions in American history on the economic disparity between white people and people of color.
Instead, I make an untrue assumption: All Americans of every phenotype are anti-racist. This assumption is akin to those made in the context of a summary judgment motion. In other words, a summary judgment movant often assumes the other side’s facts are true, even when they are not, solely to eliminate factual disputes for the purpose of the motion. The movant then contends even if the facts are as the opponent states they are, the movant’s position is still valid, and the movant’s thesis of the litigation prevails.
Even if every American were consciously anti-racist and consciously desired to achieve a racially equitable society, unconscious mechanisms resulting in system justification prevent such a realization. In the context of legal education, the U.S. News rankings catalyze and illustrate these system justifying mechanisms. Without understanding these system justifying mechanisms and the conditions mitigating their operation, an anti-racist America is unattainable.
Part I of this Article briefly discusses the rankings methodology. Part II of this Article defines racism and systemic racism, and introduces system justification theory as the mechanism by which racism and systemic racism operate. Part III explains invisible, powerful system justification occurs via unconscious mechanisms among anti-racist Americans, including people of color, reinforcing the white dominant status quo in society. This occurs even though these system justifying actions are often contrary to sincere and conscious individual desires for anti-racism and equality. Part III also provides opportunities to contextualize the operation of system justification.
Once that context is created, Part IV carefully and precisely explains how the rankings invoke, utilize, and rely on systemic racism, and why we experience no dissonance about this, even if we are anti-racists.
Finally, Part V illustrates why systemic racism based on system justification is so stubborn. System justification is a global phenomenon that automates the creation of in-groups and out-groups. In America, race and whiteness is the distinction between the in-groups and out-groups. However, there are other countries where whiteness is not a distinguishing factor between in-groups and out-groups in the existing societal hierarchies. Therefore, more powerful forces, other than just race, must be at play in perpetuating inequitable social hierarchies.
Most disturbingly, Part V explains why, after the reader becomes aware of how the rankings are infected with systemic racism, we will do nothing to change the system, and the anti-racists among us will likely have a clear conscience about continuing to rely on racist metrics