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14 Lewis & Clark L. Rev. [i] (2010)

handle is hein.journals/lewclr14 and id is 1 raw text is: Lewis & Clark Law Rev iew VOLUME 14 SPRING 2010 Numi 1 SYMPOSIUM PONDERING IQBAL The Substantive Origins of Plausible Pleadings: An Introduction to the Symposium on Ashcroft v. Iqbal Edward Brunet.......................................... Iqbal's use of the word plausible as the new standard for Rule 12(b) (6) motions is confusing at several levels. First, plausible, used as a procedural standard twenty-two times in the Iqbal majority opinion, comes with a substantive past. The Matsushita decision utilized plausi- ble or variations on plausible in a substantive sense to mean that a claim makes no economic sense. This use of plausible embraces eco- nomic theory and bears little resemblance to a procedural tool as set forth in Iqial Second, the Matsushita decision used plausible in the context of a defendants' motion for summary judgment. Indeed, Mat- sushita's majority used variations on plausible thirteen times, perhaps causing some lower courts to adopt plausibility as a surrogate new stan- dard for assessing summary judgment. Of course, the 1986 summary judgment trilogy clearly articulated a new directed verdict standard for assessing Rule 56 requests. But all those plausibility usages in Matsu- shita created a feeling that the word has a significant procedural role to play and created further confusion. Was the Court in Twombly and Iqbal trying to collapse two standards, Rule 12(b) (6) and Rule 56 into one? This brief Essay argues that the choice of plausible in Iqbal and Twombly was a mistake and that this mistaken word selection should not affect summary judgment, a very different process than the motion to dismiss for failure to state a claim. The New Summary judgment Motion: The Motion to Dismiss Under Iqbal and Twombly Suja A. Thomas................................................ 15 This Symposium Article argues that the motion to dismiss is the new summaryjudgment motion. In Iqbal v. Ashcroft and Bell Atlantic Corp. V. Twombly, the Supreme Court created a new standard for granting motions to dismiss under Rule 12 (b) (6). Under the standard, a court decides whether a claim is plausible. This new plausibility standard is converging with the standard for summary judgment under Rule 56. Not coincidentally, the motion to dismiss appears to be having some of the same effects as summary judgment, including on the dismissal of employment discrimination claims. Moreover, as a result of the sim- ilarities between the motion to dismiss and the summary judgment standards, the Supreme Court case of Swierkiewvicz v. Soremna N.A., which concerned the standard by which courts dismiss employment discrimi- nation claims under Rule 12(b) (6), effectively may be dead. This Arti- cle concludes that the differences between the motion to dismiss and summary judgment call into question the propriety of Iqbal and Twombly.

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