Sunday, June 2, 2013
Luke Meier of Baylor University Law School has posted on SSRN a new article in his probability/confidence series, entitled "Probability, Confidence, and Twombly's Plausibility Standard."
This Article offers a fresh perspective on the pleading standard of plausibility. The consensus regarding plausibility is that it requires a judge to determine the probability of the plaintiff’s allegations. This perspective has led to much of the criticism of the plausibility standard. In reality, plausibility requires a judge to perform an analytically distinct inquiry, which I term a confidence analysis. Recognizing this fact does not immunize plausibility from all of the criticism it has received. It does, however, clarify the analysis required under the standard, which should alleviate many of the concerns associated with plausibility.