Document Type
Article
Publication Date
2025
Publication
Federal Courts Law Review
Volume
17
Abbreviation
Fed. Cts. L. Rev.
First Page
1
Abstract
Lower federal courts have struggled to answer the following question without any guidance from the U.S. Supreme Court: Does the Iqbal and Twombly plausibility standard apply to affirmative defenses? In this essay, we explain why the answer is no. We aim to provide practical guidance to the countless judges deciding whether to strike an affirmative defense. First, we argue that Rule 8’s text makes using the plausibility standard to evaluate affirmative defenses improper. Judges should pay especially careful attention to our textual analysis because the Supreme Court has placed great weight on the text’s plain meaning in recent civil procedure cases. Second, we argue that using the plausibility standard in the context of affirmative defenses is unworkable, inefficient, and unfair.