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Tuesday, July 02, 2013

Legal plausibility v. Factual plausibility

In her essay on Conley v. Gibson for Civil Procedure Stories, Emily Sherwin calls Conley "precedent by accident." In the (in)famous "no set of facts" language, the Court was describing a standard for legal insufficiency, referring to a situation in which the legal right asserted did not exist as law. But lower courts ran with it as a standard for factual insufficiency and it soon came to mean that a plaintiff need not allege any particular facts, so long as some facts might come up later in the case.

Ironically, the new plausibility standard from Iqbal and Twombly is now presenting this problem in reverse. Twiqbal established a new standard for factual insufficiency and the quantity and quality of the facts the plaintiff must plead--the plaintiff must allege non-conclusory facts that, taken as true, plausibily show a violation of rights and the opportunity to recover. But lower courts have begun using plausibility for legal sufficiency--whether the plaintiff's legal arguments, as applied to seemingly undisputed facts, are plausible. Courts are denying 12(b)(6) motions where law is in dispute.

This is particularly prominent in constitutional litigation. The Tenth Circuit recently did this in a First Amendment case. And Judge Bernard Friedman of the Eastern District of Michigan did the same yesterday, holding that a challenge to the validity of  state prohibitions on same-sex marriage and on unmarried couples adopting survives a 12(b)(6) motion. After pointing out that both parties cite Windsor in support of their claims, the court states that "construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court's current statement of the law, this Court cannot say that plaintiffs' claims for relief are without plausibility."

This is just wrong. Plausibility has no role to play with respect to the validity of the plaintiffs' legal arguments. A ccannot be legally plausible--it is either legally valid or legally invalid, at least when the facts alleged are uncontested, as in the Michigan case.

The only facts that matter are these and they are not in dispute--plaintiffs are an unmarried same-sex couple, want to adopt children together, cannot marry because of state law, and cannot adopt children together because of state law. The only issue on the motion is whether these provisions of state law violate equal protection and due process, as interpreted in Windsor. That is purely a question of law for the court to decide, which is precisely what 12(b)(6) was designed for. There is no reason for the case to proceed further. No discovery is necessary, there is no fact-finding for the court to do, and no need for further factual development; the case is teed up for resolution right now, depending entirely on the legal issue of how the district court interprets Windsor. And resolving the legal dispute is the court's ultimate job. It thus makes no sense for the court to refuse to resolve the legal question now because the the plaintiff's claim is "plausible," then decide the exact same legal question six months from now, when nothing will have changed on the record before the court other than the parties repeating the same legal arguments that they could make right now. If Windsor invalidates state law, the court should deny the motion (and the plaintiffs should be making their own motion); if Windsor does not affect state law, the court should grant the motion.

The district court exacerbates its error with this closing line: "Plaintiffs are entitled to their day in court and they shall have it." This is nonsense. What does it mean to have one's day in court with respect to a legal question? It means you get a judge to resolve that question. But that is what Judge Friedman just refused, to do, at least for the moment.

Posted by Howard Wasserman on July 2, 2013 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink

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I think your point is correct, but this gay marriage decision isn't the best example. Courts at every level have sought to avoid or delay ruling that gay marriage is constitutionally required. Most of them have relied on reasoning that is considerably more of a stretch than simply refusing to tip their hand on the ultimate legal question in the course of denying a 12(b)(6) motion to dismiss. To show that this is a true conceptual error rather than just a case of strategic ambiguity, it would be good to see a decision on a less controversial topic.

Posted by: AF | Jul 2, 2013 10:35:54 AM

I'm not sure what you want here.

Plaintiffs won. The motion to dismiss was denied. There is no mechanism whereby the Court can enter final judgment in Plaintiffs' favor right now, not least because Defendants have not answered. Even if the Court is disposed to say that Windsor paints the world in rainbow stripes, it has no mechanism for doing so in response to Defendants' motion to dismiss. So we at least have to have an answer and a motion for judgment on the pleadings--a future day in court.

Maybe there should be a special procedure for constitutional cases in which there will be no factual development. (Say, are you sure there won't be some development of legislative history, social science, etc.?) But fundamentally "[t]here is one form of action."

Posted by: Sykes Five | Jul 2, 2013 10:43:17 AM

You are right that "legally plausible" is not an available resting place for deciding a 12(b)(6) motion. I wonder if there are any descriptive generalizations one might make about the kinds of cases that lend themselves to misuse of this concept. The first settings in which this idea of "legal plausibility" as grounds for denying a 12(b)(6) motion came to my attention were the Virginia and Florida challenges to the "individual mandate." But that may have only been because I was not paying close enough attention to other kinds of cases. Is anyone aware of the full extent of the problem?

Posted by: Kevin C. Walsh | Jul 2, 2013 10:46:27 AM

Kevin: The situation that has my attention, just because it is my area of interest, is equitable constitutional litigation. I remember this happening in the individual mandate cases (especially the Florida case). But I've now seen it done twice in the past two weeks, so it has my attention. I already am trying to compose my westlaw search to see if it extends more broadly.

Sykes: What I want is for the court to decide the issues presented in a procedurally appropriate way. My views on Windsor or how broadly it extends are beside the point here. Maybe the decision is not that broad and it does not invalidate these state laws. If so, the 12(b)(6) should have been granted.

I also am not arguing for a different standard for different cases, or violating the "one form of action" idea. I am suggesting the proper application of *this* standard, which necessarily recognizes that there is (and always has been) a difference between the legal sufficiency and the factual sufficiency of a complaint and leaves it with the court to decide the legal issues in the course of resolving the motion.

Posted by: Howard Wasserman | Jul 2, 2013 11:00:55 AM

The Supreme Court arguably applied the plausibility analysis to a question of "law" in Matrixx v. Siracusano. In Matrixx, the Court applied the plausibility standard to the question of materiality in a 10(b) securities claim. Determining whether "materiality" is a question of "law" to be decided by a judge or a question of "fact" to be decided by a jury, though, is a thorny issue. I deal with this in a lengthy footnote (#147) in my draft article "Probability, Confidence, and Twombly's Plausibility Standard." I conclude that the Matrixx opinion is muddled on this point. (The primary thesis of the article is that the plausibility test for factual sufficiency does NOT require a judge to analyze the probability of the plaintiff's facts.) The article can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2271802

I generally agree with Howard that plausibility should not be used to decide "pure" questions of law that are presented by the pleadings. In thinking about other situations in which something akin to a "legal plausibility" analysis is used (meaning the court refrains from conclusively deciding a pure question of law), preliminary injunctions came to mind. The standard there requires a "likelihood of success on the merits." I believe one could find cases where a court delayed definitively ruling on a pure legal question, on the theory that the plaintiff's law seemed "right" but that more research was necessary. Also, the standard for mandamus relief is sometimes articulated to require a "clear error of law." Some courts, I believe, have interpreted this to mean that mandamus is only available when the error is egregious as opposed to it being a "close case." This is a version of the "legal plausibility" that troubles Howard: The legal standard doesn't require an immediate correction on appeal so long as the trial court's ruling is "legally plausible." In sum, I generally agree with Howard's point, but I think there are other instances where decision on a pure legal question is delayed, on the theory that it is a close legal issue and that further proceedings might give the court a better perspective on the legal issue.


Posted by: Luke Meier | Jul 2, 2013 1:27:22 PM

The Supreme Court arguably applied the plausibility analysis to a question of "law" in Matrixx v. Siracusano. In Matrixx, the Court applied the plausibility standard to the question of materiality in a 10(b) securities claim. Determining whether "materiality" is a question of "law" to be decided by a judge or a question of "fact" to be decided by a jury, though, is a thorny issue. I deal with this in a lengthy footnote (#147) in my draft article "Probability, Confidence, and Twombly's Plausibility Standard." I conclude that the Matrixx opinion is muddled on this point. (The primary thesis of the article is that the plausibility test for factual sufficiency does NOT require a judge to analyze the probability of the plaintiff's facts.) The article can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2271802

I generally agree with Howard that plausibility should not be used to decide "pure" questions of law that are presented by the pleadings. In thinking about other situations in which something akin to a "legal plausibility" analysis is used (meaning the court refrains from conclusively deciding a pure question of law), preliminary injunctions came to mind. The standard there requires a "likelihood of success on the merits." I believe one could find cases where a court delayed definitively ruling on a pure legal question, on the theory that the plaintiff's law seemed "right" but that more research was necessary. Also, the standard for mandamus relief is sometimes articulated to require a "clear error of law." Some courts, I believe, have interpreted this to mean that mandamus is only available when the error is egregious as opposed to it being a "close case." This is a version of the "legal plausibility" that troubles Howard: The legal standard doesn't require an immediate correction on appeal so long as the trial court's ruling is "legally plausible." In sum, I agree with Howard's point, but I think there are other instances where decision on a pure legal question is delayed, on the theory that is a close legal issue and that further proceedings might give the court a better perspective on the legal issue.

Posted by: Luke Meier | Jul 2, 2013 1:46:36 PM

THE FOLLOWING IS POSTED AT THE REQUEST OF LUKE MEIER OF BAYLOR:

The Supreme Court arguably applied the plausibility analysis to a question of "law" in Matrixx v. Siracusano. In Matrixx, the Court applied the plausibility standard to the question of materiality in a 10(b) securities claim. Determining whether "materiality" is a question of "law" to be decided by a judge or a question of "fact" to be decided by a jury, though, is a thorny issue. I deal with this in a lengthy footnote (#147) in my draft article "Probability, Confidence, and Twombly's Plausibility Standard." I conclude that the Matrixx opinion is muddled on this point. (The primary thesis of the article is that the plausibility test for factual sufficiency does NOT require a judge to analyze the probability of the plaintiff's facts.) The article can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2271802

I generally agree with Howard that plausibility should not be used to decide "pure" questions of law that are presented by the pleadings. In thinking about other situations in which something akin to a "legal plausibility" analysis is used (meaning the court refrains from conclusively deciding a pure question of law), preliminary injunctions came to mind. The standard there requires a "likelihood of success on the merits." I believe one could find cases where a court delayed definitively ruling on a pure legal question, on the theory that the plaintiff's law seemed "right" but that more research was necessary. Also, the standard for mandamus relief is sometimes articulated to require a "clear error of law." Some courts, I believe, have interpreted this to mean that mandamus is only available when the error is egregious as opposed to it being a "close case." This is a version of the "legal plausibility" that troubles Howard: The legal standard doesn't require an immediate correction on appeal so long as the trial court's ruling is "legally plausible." In sum, I agree with Howard's point, but I think there are other instances where decision on a pure legal question is delayed, on the theory that is a close legal issue and that further proceedings might give the court a better perspective on the legal issue.

Posted by: Howard Wasserman | Jul 2, 2013 1:55:04 PM

I think the situation is a little different if the complaint presents a mixed question of fact and law as the only question to resolve -- the application of the law to the facts at hand, as opposed to a purely factual development question of "what happened." (Perhaps that is what this same-sex marriage case is doing). In that instance, a test for "legal plausibility" seems justified. That is, for these kinds of cases, which present legal questions such as the constitutionality of a statute, the plaintiff should be put to the burden up front of explaining its legal theories as to why the mixed question of fact and law resolves in its favor. But this does not mean the Judge has to necessarily decide the legal question right away, as further development could help the court's resolution. A test for "legal plausibility" for a case that involves solely the application of given facts to the law asks whether the plaintiff is likely to have a meritorious legal claim. A court could reasonably say "yes" without finally resolving the legal question. This is consistent with Luke's point above: there may be good reasons to delay a final resolution of the legal question, while still deciding whether the plaintiff has a plausible legal argument.

Click here to read my thoughts on this in a forthcoming paper titled "Election Law Pleading": http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2210470

Posted by: Josh Douglas | Jul 2, 2013 3:41:45 PM

Josh: I look forward to reading your paper.

My point is that there is no need for the additional step you're proposing. A court can decide a legal issue such as the constitutionality of a statute/regulation at any time, once the parties have fully briefed the legal and constitutional theories. What "further development" is necessary or appropriate? If it is about giving the parties sufficient time for that briefing, the court always can set a lengthy briefing schedule on the 12(b)(6). But there is no reason for the court to deny the 12(b)(6), only to have the parties brief the exact same legal points on summary judgment several weeks/months later.

Posted by: Howard Wasserman | Jul 2, 2013 4:24:05 PM

Well, I guess my point is that courts are obliquely deciding the legal questions (at least in election cases) in the guise of "factual plausibility" from Twombly and Iqbal. So there is doctrinal incongruence. If they want to review the legal questions at the 12(b)(6) stage without having to finally resolve the case, we should give them a tool to do it that does not require them to pigeonhole their analysis into Twombly and Iqbal. And many Judges will be weary of fully dismissing a case unless it is absolutely clear that the plaintiff has no good legal argument.

If the practice was in reality to give enough of a briefing schedule to flesh out the issues fully, and if the legal questions themselves do not need fast resolution, then I guess I agree with you. But because Judges feel like they need to follow Twombly and Iqbal, a "legal plausibility" regime allows them to do that and still be consistent with those cases. Further, many times, as in most election cases, timeliness is really important. So in that scenario it makes sense to require plaintiffs to provide more of their legal theories from the outset, and for courts to dismiss cases if they don't so do at least to a plausible level. But it would be too burdensome to make them prove their case in their complaint. Legal plausibility provides a middle ground.

Posted by: Josh Douglas | Jul 2, 2013 4:36:10 PM

Howard, I think I agree with you in the abstract, with two caveats about this case. First, it is possible that in this particular case there are factual (or if you wish mixed fact/law questions) that might bear on the constitutional question. For instance, if one of the plaintiffs' theories is that the laws fail even rational basis because they are motivated solely by animus, that could involve some factual determinations. I have only looked at the complaint as filed, not the amended complaint, but I think it is possible that in this case some factual issues on the margins could make a difference. Paragraph 21, for instance, refers to the "undisputed sociological and psychological evidence" regarding parenting by same sex couples -- perhaps defendants think they can dispute this evidence and that it will somehow resolve the case.

Second, the remedial question that Sykes Five raises is an important one. If the court is convinced that the plaintiffs lose on a pure question of law, then I think you are right that there is no room for legal "plausibility" -- the 12(b)(6) motion should be granted. But if the judge thinks that the plaintiff wins on a pure question of law, then the judge has no power to resolve a 12(b)(6) motion other than to deny the motion. Yes, it might mean that the plaintiff turns around in five days and files a Rule 56 motion, but I do not think there is another procedural answer. Now in this case, if the judge is truly saying "I am not sure what the law is and I am not going to tell you what I think," then it seems to be a problem. But perhaps, as others have suggested, the court is being extremely cautious on the off chance that one of the parties will think that some limited discovery is relevant here.

Posted by: Alex Reinert | Jul 2, 2013 4:49:24 PM

I think Professor Wasserman is conflating two separate points here. The first point is that talking about "legal plausibility" at the pleading stage is a conceptual error, because plausibility applies to factual allegations, not legal contentions. To the extent that a 12(b)(6) motion presents a purely legal issue, the legal issue should be resolved. I think this point is correct.

However, Professor Wasserman also makes the separate point that in the case of gay marriage -- and perhaps in any case in which the constitutionality of statute or regulation is being challenged -- the only relevant issue is a purely legal one that can and should be resolved on the pleadings. As several commenters have pointed out, that is a much more questionable assertion, particularly when formulated at that level of generality.

I think it's important to keep in mind that Professor Wasserman's point about conceptual confusion stands even if he is mistaken that the issues presented in this particular case (or any other particular case) are purely legal. If the trial court believes that a case cannot be resolved at the pleading stage because there are factual (or mixed) questions that require discovery or trial, it should identify these questions rather than state that the plaintiff's legal contentions are "plausible."

Posted by: AF | Jul 2, 2013 8:00:15 PM

Alex's comment presents a key issue: Jow do courts handle "legislative facts" such as the motivation of legislators in enacting legislation? Is that treated as a typical factual question? Or is it simply part of the legal analysis, like looking at legislative history?

Josh: Why isn't that tool one of the following: 12(c) motion by the plaintiff, plaintiff's motion for a preliminary injunction (which also gets to your timeliness point), or by converting the 12(b)(6) to summary judgment. Mind you, if I'm right about how to approach questions of law, there is no reason to want S/J instead of 12(b)(6).

Alex: I think my response above hits your second concern--plaintiffs can file a 12(c) or S/J motion. The cross (or competing) motions again tees it up for the court to simply decide the question of law, then grant or deny the motions, as appropriate. Again, no need to take the "plausibility" half step.

Posted by: Howard Wasserman | Jul 2, 2013 9:35:23 PM

Howard: Are plaintiffs actually filing 12(c) motions, or are courts actually good about converting the 12(b)(6) to a summary judgment motion? My research on election cases suggests that's not true. And so the question becomes, what tools should courts use if they are insisting on deciding the 12(b)(6) motion? A middle ground testing the plaintiff's legal theories is one solution. But I agree with you that conceptually, if the only question is one of law, then it might be better for courts to convert the motion to a summary judgment motion.

Barring that, courts are using factual plausibility, which I think we all agree is doctrinally incongruent. If courts are going to decide the 12(b)(6) motions, then legal plausibility provides one tool.

Finally, a test for the legal sufficiency of a complaint provides some guidance to plaintiffs on how to craft complaints that raise questions of law. Right now they are told to provide "more" facts when there aren't any additional facts to plead.

I guess I'm not totally disagreeing with you on one possible way to resolve these questions. But I think a legal plausibility regime is another way that has some benefits.

Posted by: Josh Douglas | Jul 2, 2013 10:25:11 PM

Howard, the plaintiffs can't file a cross Rule 12(c) motion unless the defendants have answered. Given that the defendants filed a Rule 12(b)(6) motion, I assume they did not file an answer.

As to the legislative versus adjudicative facts question, I am not sure it connects directly this issue. As an example, when the challenges to the Partial Birth Abortion Ban were brought (in three separate district courts), the issue of what facts were adjudicative and what facts were legislative was argued, but the courts that treated some of the issues as legislative facts (e.g., whether intact dilation and extraction was ever medically necessary) still held evidentiary hearings. Whether it was treated as legislative or adjudicative affected the standard of review on appeal, not whether it could be resolved solely on the pleadings. (Of course, The Court in Carhart II ducked the question of which facts to treat as legislative.)

Posted by: Alex Reinert | Jul 2, 2013 10:44:31 PM

Good point on 12(c), Alex. The real procedure for the plaintiff in most of these cases should be a motion for a preliminary injunction. That should be where the plaintiff puts on his legal theories and, to the extent it is necessary, the court engages in fact-finding for any legislative and/or adjudicative facts.

Posted by: Howard Wasserman | Jul 2, 2013 11:04:45 PM

Right, although when I have been faced with the strategic question as a lawyer as to whether to move for a PI or wait until after the pleadings, I have sometimes decided that it is better strategically to wait -- moving for a PI really requires having everything lined up for a prompt hearing and being extremely confident that I have nothing to gain by waiting and seeking even limited discovery.

Posted by: Alex Reinert | Jul 2, 2013 11:19:15 PM

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