Wednesday, December 23, 2009
The New York Times yesterday ran an editorial urging Congress to overturn Ashcroft v. Iqbal, the case that came down last spring and effectively heightened the pleading standard for plaintiffs in federal court. (Thanks to Con Law Prof Blog editor Ruthann Robson for the heads up.) We most recently covered the issue here.
The Times is right in framing the issue as an access question. As we've written here and here, lower courts have used Iqbal to dismiss hundreds of complaints for failure to meet the pleading standard set in the case. (We of course don't know exactly how many of these cases might also have been dismissed under the pre-Iqbal plain-statement standard. But the rash of dismissals in the wake of Iqbal, and citing Iqbal, suggests that this case is responsible, as the Times writes, for curtailing access to the courts.)
Congress can undo the effects of Iqbal and return the pleading standard to the pre-Iqbal level. Senator Specter introduced legislation here; Representative Jerrold Nadler introduced legislation here. We looked more carefully at the legislation here.