Friday, September 11, 2009

Recent Commentary on Ashcroft v. Iqbal

Professors Kevin Clermont (Cornell) & Stephen Yeazell (UCLA) have posted on SSRN their article Inventing Tests, Destabilizing Systems, 95 Iowa L. Rev. ___ (forthcoming Mar. 2010). Here's the abstract:

The U.S. Supreme Court has revolutionized the law on pleading, by its suggestive Bell Atlantic Corp. v. Twombly and definitive Ashcroft v. Iqbal. But these decisions do more than redefine the pleading rules: by inventing a test for the threshold stage of a lawsuit, they have destabilized the entire system of civil litigation. The destabilization should rekindle a wide conversation about fundamental choices in designing our legal system. Those choices are debatable. The bone picked with the Court is not that it has taken the wrong path for pleading, but that it blazed a new and unclear path alone and without adequate warning or thought. The point of this Article is that wherever you stand on pleading - even if you think the federal litigation system is wildly out of control with many frivolous suits, or instead if you think the role of pleading should be further purified to eliminate all of its screening function - you should find these recent decisions lamentable.

The Article describes the Court’s choice to shift from minimal notice pleading to a robust gatekeeping regime, and next gives some reasons for thinking the Court’s course on this important matter may promise the worst of both worlds. Then, after some thoughts on the Court’s possible motivation, it briefly offers some ways out of the bog.

This week on Concurring Opinions, Jon Siegel (George Washington) has two very interesting posts on the consequences of Iqbal:

Iqbal Keeps Spreading

Iqbal Empirics

Finally, I'll mention that the folks at Concurring Opinions were nice enough to allow me to post some thoughts on Iqbal last month. See Re-reading Iqbal (a new take on the 12(b)(6) wars), which summarizes some of the arguments I make in my recent article The Pleading Problem. Here's my abstract:

Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This article provides that theory. It develops a new paradigm - plain pleading - as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference. Moreover, it is able to reconcile Twombly and Iqbal with pre-Twombly authority.

--A

PS: Yes, I managed to hold out for an entire 48 hours before indulging in transparent self-promotion as an editor of this blog. The over-under was 42.5.

PPS: Actually, that's the O/U for this weekend's Broncos-Bengals opener. Vegas hasn't yet taken an interest in law professor blogging, which is probably for the best.

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Comments

In the Ashcroft v. Iqbal this serves as another reminder as to why the founding fathers said the US Supreme court was likely a big mistake. All this law does is further violate the rights of the People and further this ruling again only serves to protect the truly guilty thereby putting up the brick wall between leaders with cronies who do their dirty work a military officer is accountable for the acts/actions of troops under him CEO's of companies are held accountable and when they are not its because of pure public corruption and changing of the rules/laws of the game in mid game because they are going to loose otherwise. Kinda like changing horses in the middle of a horse race making it a relay race for just the one they want to win. Poor sports, poor leadership playing in a fixed game so they are always the winners. Its time to rid ourselves of the supreme court and be done with their selective sense of justice only serving the selected few and most always only benefitting the state or gov or the selected few mostly those with the most power and money but not always sometimes its whatever their real underline motive maybe illegal abortion was a prime example insteading of making the doctors/nondoctors who did it class A felons they created a new industry out of murdering unborn children, they helped decrease population and hide mostly men of weath and powers cheating on their wive;s girlfriends by the ability to offer and pay for legal abortions and perhaps even hush money. I guess we should be shocked at further laws being made towards open slavery but only if you are one of those who thinks slavery was ever abolished and not just given new titles, names, colors and a basic complete make over in order to hide it well and better from the masses who have been foolish enough to think America is a Free country when its a nation of dictators that has long been being ran by tyrants posing as freedom supporters invoking several sets of laws and rules according to classes, breeding races, incomes level and ability to earn with a selected few allowed to reach the top so the rest will have hope and think they can when in fact they will steel their effeorts, works, abilities long before they'll ever pay or reward them for their hard work or inovative ideas.

Posted by: wisewon | Jun 13, 2010 3:54:49 PM

Its no wonder the American people are fed up with this nations, government, laws, states, and business question is how much longer will it be before it all comes crashing down and the total destruction of America takes place and can not be stopped but the looks of it its not going to be too much longer.

Posted by: wisewon | Jun 13, 2010 4:04:15 PM

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