109 Iowa L. Rev. 1611 (2024)
Abstract
Plausibility pleading requirements articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal continue to confound even well-intentioned courts. But for courts inclined to avoid grappling with modern applications of existing law, they provide ideal camouflage: a way of relying on procedural justifications to ostensibly side-step substantive law decisions—while in effect creating de facto law that robs litigants of their day in court. These negative, unintended consequences of Twombly and Iqbal are vividly illustrated in recent federal litigation brought under the Fair Housing Act involving claims of landlord liability for tenant-on-tenant harassment.
This Article demonstrates how plausibility pleading, when improperly applied in cases involving unsettled law, creates substantive law sub silentio with powerful consequences. These decisions, couched as procedural rulings, in fact impose substantive limits on the rights of both the parties and future litigants, insulate courts from potentially critical appellate review, and hinder the development of legal protections. After all, absent explicit splits in authority, the already small likelihood of attracting Supreme Court or congressional attention becomes infinitesimal. In response, this Article recommends a framework for analyzing novel legal claims that promotes the development of a more coherent body of substantive law while limiting judicial time spent on objectively meritless claims. This approach is consistent with the policies underlying the Supreme Court’s adoption of plausibility pleading and, in the specific example we address, with Congress’s broad remedial goals in enacting the Fair Housing Act.