Answering these questions requires an understanding of current Supreme Court precedent on pleading that the academic literature following Twombly and Iqbal has failed to provide. Academic commentators have generally written negatively about the two cases, focusing on the subjective discretion that district court judges will be given to dismiss disfavored claims. I have previously written about a three-step framework that courts should apply to adjudication a motion to dismiss after Twombly and Iqbal, and in doing so, have suggested that a proper reading of Twombly and Iqbal will not lead to the commentators’ feared subjectivity. Instead, I argued that Twombly and Iqbal merely require a district court judge to check a plaintiff’s ability to assess her own likelihood of success. Other things being equal, a judge is in a better position to make this determination than a self-interested plaintiff.
Although I have previously concluded that much of the academic criticism of the two cases is unwarranted, here, I will argue that the two cases place untenable burdens of information on district court judges. To accurately make the plausibility inquiry, a district court judge must gain a near expertise in the particular, context-specific subject matter of the lawsuit. For example, in Twombly, the Supreme Court needed to have knowledge of the rational economic behavior of former Government-sanctioned monopolists before deciding whether the defendants’ mere failure-to-compete plausibility suggested the plaintiffs’ entitlement to relief. Judges will look to the parties, or the parties will look to present information to the judge on this baseline knowledge.
This Article will, therefore, provide a discussion of the practice under Rule 12(b)(6) and answer the above-asked questions. I will then provide a general criticism of the two cases that focuses on an aspect of the cases that has not yet been covered in the academic literature—the decision-making process of the district judge.