Monday, August 10, 2009

New News On Iqbal

We were in the middle of the debate about Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), when the decision came down a couple of months ago. (For our relatively early posts about the case, which in turn link to responses to our arguments, click here and here.)

With the passage of time, we figured we'd check the web for you to see what else people have written about the case.

AmLaw Daily reports on a couple of recent developments in the case law. (The New York Times tells us that lower courts have cited Iqbal more than 500 times in the scant two months that it's been on the books.)

We reported here on Senator Arlen Specter's introduction of the Notice Pleading Restoration Act to legislatively overrule Iqbal. PrawfsBlawg tells us that the bill is unlikely to pass and notes some issues of Congressional power raised by Specter's bill.

Proving the speed of the net, there's now a full-blown Wikipedia entry discussing the Supreme Court decision.

Over at Concurring Opinions, Jaya Ramji-Nogales has already "re-read" Iqbal and proposes a way to rationalize its holding with holdings in earlier Supreme Court cases. Adam Steinman (Cincinnati) tries to do the same in a research paper posted at SSRN.

Perhaps most dramatically, Assistant Professor Kenneth S. Klein of California Western School of Law suggests in a forthcoming law review article that the pleading standard set forth in Iqbal violates the Seventh Amendment. (Tenure? Maybe. Success in court? No way.)

We still continue to see law firms publishing brochures that recite the facts of Iqbal and explain that the case has affected the standard for pleadings in federal courts. Note to those law firms: The web is way, way ahead of you. If you're planning to write about Iqbal today, you should at least research what's already been said about the case on the web and try to respond to those arguments.

And finally, please don't forget Sir Muhammed Iqbal, whose classic "Ahead of the Stars," remains by some distance our favorite poem in Urdu.

We suspect we'll start seeing some "real" scholarship about Iqbal -- law review commentary -- this fall. If we stumble across anything interesting, we'll let you know.

2 comments:

Max Kennerly said...

You can also check what Posner and Easterbrook wrote about it (in actual opinions), as I blogged about here:

http://www.litigationandtrial.com/2009/08/articles/the-law/for-lawyers/posner-and-easterbrook-put-the-brakes-on-ashcroft-v-iqbal/

In short, they're not impressed by Iqbal. Easterbrook thinks the plaintiff need only plead an inference that is "plausible" even in cases alleging fraud, while Posner wonders if Twombly or Iqbal apply at all to most cases.

Beck/Herrmann said...

We really stick to product liability here. Like anything (see Daubert), Twombly/Iqbal can be overused. All we can say is that, here in our sandbox, we sense a significant change.

We remember, shortly after Daubert came down, how similar arguments were made that Daubert actually "liberalized" standards for expert testimony.

We do know that judges are now throwing out the kind pleading garbage that really hacks us off - boilerplate allegations of FDCA violations, design and manufacturing defects, and express warranty claims.