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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