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Forthcoming 2019
Forthcoming 2019 is a section from the Everyday Evidence blog that highlights recent papers from attorneys and professors from across the legal spectrum. These recent and soon-to-be publications offer readers a chance to see a wide range of issues from different legal fields.
Today’s Forthcoming 2019 features Daniel Epstein and his recent paper How Probable is “Plausible”?
About Daniel Epstein
Daniel Epstein is a litigator whose practice includes appeals, civil rights, criminal defense, domestic violence orders of protection, emergency litigation, immigration, and complex civil litigation related to antitrust, contracts, employment, environment, insurance, intellectual property, and securities.
Mr. Epstein received his bachelor’s degree in economics and political science in 2007 from Washington University in St. Louis. He received his J.D. in 2015 from The University of Chicago Law School. He was the Hinton Moot Court champion, a winner of the Thomas R. Mulroy Prize for Excellence in Appellate Advocacy and Oral Argument, a Tony Patiño fellow, a staff member of the Chicago Journal of International Law, and co-president of the Public Interest Law Society.
Mr. Epstein’s pro bono practice is active and has included the representation of clients before the Supreme Court of the United States, the Seventh Circuit Court of Appeals, multiple federal district courts, multiple state courts, and both federal and state administrative courts. Mr. Epstein won the Albert E. Jenner Pro Bono Award in 2016 for providing exceptional pro bono legal services to the needy and in 2019 was honored as one of Chicago Scholars’ “35 under 35 Young Leaders Making an Impact.”
Mr. Epstein has been published in The University of Chicago Law Review Online, The Washington Post, The Chicago Daily Law Bulletin, Law360, The Washington University Political Review, and Chicago Unbound (among others); he co-authored the Illinois Civil Practice Guide; and he contributed to a chapter on crisis management in Business and Commercial Litigation in Federal Courts, Fourth Edition. Mr. Epstein is the chairman of the Chicago Bar Association’s Committee on Alternative Dispute Resolution. He also serves on the board of directors of the Jewish Council on Urban Affairs, on the Young Professionals Council of the Lawndale Christian Legal Center, as a founder and the president of Perspective to the People, and as a member of the Institute for New Economic Thinking’s Human Capital and Economic Opportunity Global Working Group.
Prior to joining Jenner & Block, Mr. Epstein was the director of Government Relations for a global private provider of education services. He has worked in government in the United States and the United Kingdom. He also worked as a consultant—focusing on business best practices research for Fortune 100 insurers—and led a nonprofit supporting educational initiatives on five continents.
Abstract
How Probable is “Plausible”?
Nearly every jurist who sets foot in federal court confronts Rule 12(b)(6) motions to dismiss. Each time they do, those jurists debate or determine whether the complaint states a claim to relief that is “plausible” on its face. That presents a huge problem, because no court or scholar has been able to offer an unambiguous definition of “plausibility,” and so nobody knows the true height of what is likely the most commonly confronted legal threshold in federal litigation.
This Article offers a normative solution to that problem and estimates that, on average, in order to be “plausible,” a complaint should persuade a court that there is no less than a 12.2 percent chance that the defendant is truly responsible for that which they are being sued. This Article’s pleading-phase error-minimizing (PPEM) model formally defines the pleading threshold (also known as the “plausibility threshold”) as a function of pleading merits, estimated continuation costs, estimated judgment value, and estimated likelihood of false verdicts/judgments. And it yields surprising results, including showing that, in certain circumstances, class size should have a bigger impact on the motion to dismiss decision than the merits of the claim itself, and rebutting the proposition that courts should be less inclined to dismiss cases at the pleading phase when defendants are in control of critically responsive discovery.
This Article then takes the same framework it uses at the pleading phase to establish the PPEM model and applies it at the discovery phase to establish the discovery-phase error-minimizing (DPEM) model, which jurists can apply to determine when discovery motions should be granted or denied. The PPEM and DPEM models use the same normative framework that underpins the preponderance of the evidence threshold (that is, the goal of error-minimization), which means that applying the PPEM and DPEM models unifies the (presently divergent) rules of decision for pleading, discovery, and verdict/judgment. And, as this Article explains, unifying the rules of decision could improve litigation efficiency by eliminating incentives for litigants to present dishonest and inconsistent assertions regarding the proper scope of discovery.
Daniel’s article can be found here.