Civin and Adegbile Analyze Twombly and Iqbal

Joshua Civin and Debo Adegbile of the NAACP Legal Defense & Educational Fund just published Restoring Access to Justice: The Impact of Iqbal and Twombly on Federal Civil Rights Litigation, an American Constitution Society Issue Brief on Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal that walks readers through the impact of these cases in plain language and explores congressional responses.  From the Brief:

The names Yick Wo, Heman Sweatt, Pete Hernandez, Clarence Gideon, Annie Harper, Mildred and Richard Loving, and Willie Griggs are barely known to the American public, but the nation they helped forge is their lasting legacy.  These individuals went to court, and their ability to do so literally changed our understanding of citizenship, access to education, jury service, the right to counsel, access to the voting booth, marriage, and equal employment opportunity.  Indeed, much of our nation's progress toward the Constitutional aspiration of a "more perfect Union" occurred because these and other ordinary people have had ready access to litigate meritorious but often novel or difficult-to-prove cases in our courts.

. . .

Recently, however, in a pair of decisions, the Supreme Court skewed the balance away from access to courts by elevating the threshold standard that all plaintiffs must meet to pursue legal claims.  In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Court suddenly and without clear necessity overturned well-settled law and imposed a more stringent standard for federal cases to survive.  These decisions, by dramatically frontloading litigation and inviting judges to substitute their threshold personal judgments in place of evidence, go far beyond the familiar "verdict first, trial second" problem of which high-profile defendants complain.  Instead, under Twombly and Iqbal, we now risk a world in which meritorious claims face "dismissal first, trial never."

We posted most recently on the cases here.

SDS