Tuesday, May 26, 2009

On Iqbal And Twombly

We failed you.

Iqbal v. Ashcroft, __. U.S. __ (May 18, 2009) (here's a link to the decision through the Supreme Court website), came down last Monday, holding that the more rigorous pleading standards set forth in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), apply to all civil actions.

The blogosphere was all a-twitter. (Oops! Technology caused an ambiguity there: We don't really mean that the blogosphere was all a-twitter, because we don't follow anyone on Twitter. In fact, the blogosphere was all a-blogger.)

And where were we?

Both of us were on the road and out of pocket, so we weren't able to cover this case in real-time. Instead, we offer only our apologies and this belated, and largely derivative, coverage of Iqbal.

In a nutshell: The feds arrested Iqbal, a Pakistani Muslim, after 9/11, and Iqbal filed a Bivens action claiming that he was deprived of various constitutional protections while in federal custody.

(Most people think that the "alleged terrorist" part of this decision is the exciting stuff. Shows what they know.)

From where we sit, these are the money quotes: "Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ." Iqbal, slip op. at 20. We'd been arguing for that result for a while; we're delighted to see the folks in the robes agree.

And then the implications: "Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 14. "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 14-15.

In ordinary times, we'd then read the decision and react to it. But these are not ordinary times -- we were too busy to blog! -- so we'll just give you a sense of what others have said about the decision.

First, Point of Law provides a comprehensive set of links to web-based commentary about Iqbal and Twombly.

Second, reaction to the decision:

Michael Dorf (of Cornell) is outraged:

"Form 11, which accompanies the Rules and is thus supposed to be authoritative, gives the following example of a legally sufficient complaint: 'On date, at place, the defendant negligently drove a motor vehicle against the plaintiff.' That's all. It is harder to imagine a more 'bare-bones' complaint; yet the Form makes clear that this suffices. . . . It is hard to see how, exactly, [the Iqbal majority's] statement of the Rule is consistent with the 'unadorned' allegation of negligence that the authoritative Form 11 itself accepts."

Howard Wasserman (Florida International) even more so:

"[T]he evaluation of facts as more or less likely (such as the explanation for a policy decision and resulting governmental conduct) really ought to be for a jury. So Iqbal, even more than Twombly, Suja Thomas' arguments that 12(b)(6), as now understood, invades the jury's fact-finding provenance, in violation of the Seventh Amendment, is beginning to look very strong." [The dropped words, or something, are in the original, but you get the point.]

Tobias Wolff (Penn) via Workplace Prof Blog:

"I fear that the shock waves that Twombly sent through the lower courts will be as nothing compared to the impact of Iqbal. The Court has just transformed the litigation process and given lower courts a license to dismiss factually specific complaints when their 'common sense' tells them that the allegations have 'obvious alternative explanations.'"

Scott Dodson (University of Arkansas) at the Civil Procedure Prof Blog:

"[A]pplying a restrictive pleading standard transsubstantively will surely result in fewer meritorious cases filed, more meritorious cases dismissed, and less unlawful conduct redressed, particularly for cases in which a less restrictive standard could achieve a better balance between efficiency and justice."

And, in a pre-Iqbal piece, even -- egad! -- Richard Epstein (University of Chicago) criticizes Twombly in a full-length law review article:

"The Supreme Court's general disapproval of Conley sweeps far too wide. Discovery should only be denied when the plausible inferences that can be drawn from the complaint and publicly available evidence clearly imply further discovery is of little value. Accordingly, the Federal Rules of Civil procedure should explicitly acknowledge that in a small set of cases motions on the pleadings can properly function as truncated and disguised motions for summary judgment."

Now, the other side of the coin:

Remarkably, the other side of the coin has not yet been minted.

In about a half hour of searching the web (when we were writing this post, which was several days ago), we didn't find any serious analysis defending the Court's decision. (There are a few pieces quoting defense lawyers shouting "hallelujah," but no one yet explaining why the decision is right.)

Maybe we haven't been scooped, after all.

There's still some work to be done here.

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