Faculty Scholarship Digest
Anne E. Ralph
Anne E. Ralph, Not the Same Old Story: Using Narrative Theory to Understand and Overcome the Plausibility Pleading Standard, 26 Yale J.L. & Human. 1 (2014).
In this article, Anne proposes an ameliorative or even beneficial approach for addressing the Supreme Court’s recent requirement of heightened pleading standards: conscious application of narrative theory to draft “plausible” complaints. As the article explains, in the Twombly (2007) and Iqbal (2009) cases, the Supreme Court effectively raised the standard required for a complaint in federal court to survive a motion to dismiss from the long-standing “notice pleading” to a more difficult “plausibility pleading.” Academics have harshly criticized this shift on many grounds, substantively including the “Catch-22” difficulty for plaintiffs of needing facts to survive pleading but needing to survive pleading to discover facts, the subjectivity and malleability of the “plausibility standard,” and the extent to which it narrows access to justice, particularly for discrimination claims. Anne argues that the new plausibility standard is an implicit call for better use of narrative in complaints, and that, with conscious application of narrative theory to their complaints, plaintiffs can circumvent the pitfalls described above.
The article provides as careful a tour of narrative theory as it does of the heightened pleading rules in order to describe what makes a narrative persuasive. In particular, Anne highlights and describes narrative coherence, narrative correspondence, and narrative fidelity. With this background, the article details how narrative theory can resolve the problems posed by the plausibility standard. The explanation comes first in the abstract and then with examples from five cases decided under the plausibility standard. To summarize this discussion by saying effective story-telling can be crucial to a complaint’s survival does not do the discussion justice, but will have to suffice here. A final section addresses some potential criticisms of such story-telling complaints---that they may unduly narrow a plaintiff’s claim or provide too much fodder for defendants---and finds them inapt. While conceding that “narrative may not receive explicit acceptance in the terms this article proposes,” given law’s longstanding hostility to elements that could be seen to diminish its objectivity, Anne demonstrates that such recognition is not necessary for its principles to aid litigants and courts.