Monday, May 10, 2010
Professor Lisa A. Eichhorn (University of South Carolina School of Law) has posted "A Sense of Disentitlement: Frame-Shifting and Metaphor in Ashcroft v. Iqbal" on SSRN. It will be published in the Florida Law Review.
The abstract states:
Despite their seeming unsexiness, many judicial opinions interpreting procedural rules are informed by metaphors that reveal anxieties and resentments regarding the litigation process and that propagate specific characterizations of that process.
This paper examines the metaphoric content of the Supreme Court majority’s opinion in Ashcroft v. Iqbal (2009). This case has increased the specificity with which plaintiffs must plead their cases to avoid early dismissals. While drawing little media attention, Iqbal has profoundly affected access to justice.
In explaining its rationale, the Iqbal majority employs a frame-shift surrounding the concept of entitlement - entitlement of defendants to be free from continued litigation, and the supposedly outsized sense of entitlement that plaintiffs assert regarding their right to proceed to discovery. In addition to this frame-shift, the Iqbal majority uses two judging-as-measuring metaphors to buttress its analysis and to couch its decision as a non-controversial application of existing pleadings doctrine. These frames and metaphors both reveal and hide much regarding the precedents and policies driving the Iqbal outcome.