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Symposium
Introduction
By Justin Houser and Nancy Welsh. 114 Penn St. L. Rev. 1143
One of the goals of the 2009-2010 Editorial Board of Penn State Law Review has been fostering a culture in which the law review serves as the catalyst for scholarly discussion among all the stakeholders in the legal community—academics, practitioners, jurists, and students. In that spirit, Penn State Law Review is pleased to present this symposium issue, Reflections on Iqbal: Discerning Its Rule, Grappling with Its Implications. This issue preserves, in written form, the lively debate concerning the various dimensions of Ashcroft v. Iqbal, which were articulated at the symposium held at Penn State University, The Dickinson School of Law, on March 26, 2010. [keep reading]
Agenda
Iqbal and the Role of Courts
I Could Have Been a Contender: Summary Jury Trial As A Means to Overcome Iqbal’s Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution
By Nancy A. Welsh. 114 Penn St. L. Rev. 1149
For decades, lawyers’ bilateral negotiations, rather than trials, have resolved a majority of the civil actions filed in courts in the U.S. Increasingly, lawyers and clients now conduct these negotiations within court-encouraged or court-mandated mediation. Some commentators decry these developments, while others argue that the drafters of the Federal Rules of Civil Procedure always intended to provide disputants with the tools needed to investigate and then resolve their own disputes. From the latter perspective, a self-sufficient and democratic people (and the legal profession that has developed to serve them ) should be expected to take the initiative to identify alleged harms, communicate with each other, listen to each other’s perspective, review necessary information, and ultimately attempt to reach customized solutions before turning to expensive and intrusive public resources—i.e., judges and juries—for decisions enforceable by the state. [keep reading]
Getting a Clue: Two Stage Complaint Pleading as a Solution to the Conley–Iqbal Dilemma
By Ray Worthy Campbell. 114 Penn St. L. Rev. 1191
Consider these scenarios:
While a commercial jet is in flight, both engines catch fire. Lacking propulsion, the plane crashes. All aboard are killed.
A consumer brings home a new appliance. When it is first plugged in and operated, it explodes. The consumer is seriously injured.
A fire breaks out in a crowded nightclub. Between the fire, the smoke and the ensuing panic, dozens of patrons die.
Prior to Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the plaintiff’s path in each of these scenarios was clear: name every possibly culpable defendant and let discovery sort them out. Under the liberal pleading rules of Conley v. Gibson, so long as the defendant had fair notice of what the claim was about, and so long as the defendant’s connection to the harmful event was not too attenuated, litigation could proceed. [keep reading]
Why Heightened Pleading—Why Now?
By Jeffrey J. Rachlinski. 114 Penn St. L. Rev. 1247
As Professor Ray Campbell stated in his remarks at this symposium, Ashcroft v. Iqbal may be the Supreme Court case that launched a thousand law review articles. Although a statement like that is usually meant to imply that too much ink is being spilled on a subject, in this case the game is worth the candle. Civil pleading rules play a central role in the rule of law in any legal system. Determining who is allowed to invoke the machinery of the civil justice system, and under what circumstance they may do so, lies at the core of how a system of law defines itself. The papers in this symposium outline how Iqbal has the potential to change the very purposes of the system of civil justice and give some glimpse into why such a change has come about. [keep reading]
Pleading and Access to Civil Procedure: Historical and Comparative Reflections on Iqbal, A Day in Court and a Decision According to Law
By James R. Maxeiner. 114 Penn. St. L. Rev. 1257
Abstract
The Maryland Declaration of Rights proclaims “That every freeman, for any injury done to him in his person, or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.” America’s litigation lawyers know that these fine words do not describe the reality of our system of civil justice. Last year the American College of Trial Lawyers pronounced our system a “captive to cost, delay and gamesmanship” and “in serious need of repair.” The Iqbal decision is an attempt to deal with one of many failings of our system.
Globalization challenges America to construct a system of civil justice that works. Foreign parties find litigating here a “nightmare.” So, too, do our own people, but they do not know alternatives. The Report of the American College of Trial Lawyers reminds us that our foreign friends know alternatives that work well; no wonder that they are disappointed here.
This article is based on a forthcoming book that examines from beginning to end, a lawsuit in three countries: the United States, Germany and Korea. The book shows ways that one foreign legal system minimizes costs and delay and promotes decisions according to justice and right. The draft chapters of the book are available online at http://ssrn.com/author=825054.
This article puts pleading in historical and comparative perspectives. It shows how past and present systems of American pleading have failed while the German system succeeds.
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Iqbal and Constitutional Torts
Iqbal and Supervisory Immunity
By Kit Kinports. 114 Penn St. L. Rev. 1291
In determining the reach of constitutional tort liability, the Supreme Court has traditionally balanced the goals of deterring constitutional misconduct and compensating those whose rights have been violated against the governmental interest in ensuring that public officials are not unduly inhibited in the performance of their duties. I have previously argued that those competing interests are best accommodated by holding supervisory government officials liable for the constitutional misdeeds of their subordinates so long as the supervisors themselves were personally culpable—that is, at least negligent—and so long as their negligence caused the deprivation of constitutional rights. Although this question has generated some controversy in academic circles, lower court decisions prior to Ashcroft v. Iqbal generally acknowledged the concept of supervisory accountability, though differing on the appropriate standard of liability. [keep reading]
Qualified Immunity and Interlocutory Fact-Finding in the Courts of Appeals
By Mark R. Brown. 114 Penn St. L. Rev. 1317
In Ashcroft v. Iqbal, the Court held that a district court decision denying defendants’ motion to dismiss “turned on an issue of law and rejected the defense of qualified immunity,” and was therefore immediately appealable under the collateral order doctrine that has been applied to purely legal questions tied into denials of qualified immunity. The Supreme Court in Iqbal rejected the plaintiff’s contention that “a qualified immunity appeal based solely on the complaint’s failure to state a claim” —rather than on the “ultimate” qualified immunity issue of whether the acts allegedly committed by the defendants constituted a violation of clearly established law—“is not a proper subject of interlocutory jurisdiction.” “[A]ppellate jurisdiction is not so strictly confined,” the Court concluded. [keep reading]
The Supreme Court’s Legislative Agenda to Free Government from Accountability for Constitutional Deprivations
By © Gary S. Gildin. 114 Penn St. L. Rev. 1333
In Bell Atlantic Corp. v. Twombly, the Supreme Court adopted a new standard of factual particularity a plaintiff must meet to satisfy the requirement of Federal Rule of Civil Procedure 8(a)(2) that a complaint plead a “short and plain statement of the claim showing that the pleader is entitled to relief.” In Ashcroft v. Iqbal, the Court made clear that the Twombly pleading standard extended to civil actions seeking redress for deprivation of constitutional rights in particular, and universally to all Complaints filed in federal court. Commentators have debated whether after Iqbal, victims of constitutional wrongdoing will be able to survive a 12(b)(6) motion to dismiss where the government and its officials exclusively harbor knowledge of the facts that animated the deprivation. Where constitutionality turns on the government’s motive or justification for its actions, how can the plaintiff assert factual allegations sufficient to “nudge [his] claims across the line from conceivable to plausible?” [keep reading]
Iqbal, Bivens, and the Role of Judge-Made Law in Constitutional Litigation
By James E. Pfander. 114 Penn St. L. Rev. 1387
Widely noted for the pleading revolution it furthers at the district court level, the Supreme Court’s decision in Ashcroft v. Iqbal also makes important changes in the way federal appellate courts will resolve the qualified immunity issues that arise in the course of Bivens litigation. In brief, Iqbal confirms that qualified immunity—something that the Court regarded as self-evidently an affirmative defense only a generation ago—will be treated as a matter on which the plaintiff bears the burden of relatively specific pleading. This secures the government officer’s right to invoke qualified immunity by way of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. What’s more, Iqbal adopts a broad interpretation of the collateral order doctrine that will allow the government to seek immediate appellate review of virtually any rejected qualified immunity defense at the pleading stage. While the Court had previously applied the collateral order doctrine to orders rejecting claims of qualified immunity, the Iqbal decision extends the doctrine to fact-bound determinations about the sufficiency of allegations of fact that might be regarded as dubious candidates for interlocutory review.
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Iqbal and Race
Interrogating Iqbal: Intent, Inertia, and (a lack of) Imagination
By Victor C. Romero. 114 Penn St. L. Rev. 1419
Abstract
In Ashcroft v. Iqbal, the Court reaffirmed the long-standing equal protection doctrine that government actors can only be held liable for discriminatory conduct when they purposefully rely on a forbidden characteristic, such as race or gender, in promulgating policy; to simply know that minorities and women will be adversely affected by the law does not deny these groups equal protection under the law. This Essay interrogates this doctrine by taking a closer look at Iqbal and Feeney, the thirty-year-old precedent the majority cited as the source of its antidiscrimination standard. Because Feeney was cited in neither of the lower court opinions, its reappearance in Iqbal signals the Court’s reluctance to intervene in matters (even tangentially) related to national security even if the government’s allocation of burdens and benefits perpetuates societal racial and gender privileges. [keep reading]
Implausible Realities: Iqbal’s Entrenchment of Majority Group Skepticism Towards Discrimination Claims
By Ramzi Kassem. 114 Penn St. L. Rev. 1443
In Ashcroft v. Iqbal, handed down on May 18, 2009, the U.S. Supreme Court held that Javaid Iqbal failed to plead sufficient facts to support the allegation that he had been arbitrarily and unconstitutionally classified by the federal government as a person “of high interest” and detained in a maximum security facility after September 11th, 2001 because of his race, religion, and national origin. In affirming dismissal of the complaint, the Court noted that the facts alleged did not “‘nudge[] [the plaintiffs’] claims’ of invidious discrimination ‘across the line from conceivable to plausible.’” Iqbal ostensibly extended to intent-based civil claims the Supreme Court’s earlier decision in Bell Atlantic Corporation v. Twombly, mandating that pleadings in antitrust cases must allege enough facts to plausibly “sho[w] that the pleader is entitled to relief” under Rule 8(a)(2) of the Federal Rules of Civil Procedure. [keep reading]
Business as Usual: Immigration and the National Security Exception
By Shoba Sivaprasad Wadhia. 114 Penn St. L. Rev. 1485
For many, the name Iqbal identifies a famous Pakistani poet and philosopher. In Arabic, the name Iqbal means one who is fortunate or wealthy. In several cultures, the naming of a child is a sacred act and celebrated event. Such cultures associate a name’s meaning to the qualities and characteristics shared by the child named. By extension, one might assume that one who is named Iqbal will enjoy great prosperity and riches. The legal and human journey for a man named Javaid Iqbal proved to be quite different.
Javaid Iqbal is a native and citizen of Pakistan and a Muslim. After moving to the United States, Iqbal worked as a cable television installer on Long Island. Iqbal was one among hundreds of men apprehended and detained by the United States Department of Justice in the weeks that followed the September 11, 2001 attacks. Iqbal was held in a federal prison in Brooklyn, New York called the Metropolitan Detention Center (MDC), for more than one year. In January 2002, Iqbal was transferred to the maximum security section of the jail known as the Administrative Maximum Special Housing Unit (ADMAX SHU). Following his deportation to Pakistan, Iqbal filed a federal lawsuit in the District Court for the Eastern District of New York against several federal government officials, including the former Attorney General John Ashcroft and the former head of Federal Bureau for Investigations Robert S. Mueller III, claiming that they were responsible for the abuses he suffered while at MDC. While at MDC, Iqbal alleged that he suffered the following abuses “numerous instances of excessive force and verbal abuse, unlawful strip and body cavity-searches, the denial of medical treatment, the denial of adequate nutrition, extended detention in solitary confinement, the denial of adequate exercise, and deliberate interference with [his] rights to counsel and to exercise of [his] sincere religious beliefs,” among other things. Iqbal alleged that he was singled out for mistreatment based on race, religion and national origin and also “subjected to a pattern and practice of cruel, inhuman, and degrading treatment in violation of the United States Constitution, federal statutory law, and customary international law.”
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Closing Keynote
Pleading, for the Future: Conversations After Iqbal
By Lee H. Rosenthal. 114 Penn St. L. Rev. 1537
One of the themes at this Symposium has been the remarkable volume and intensity of the response to the Supreme Court’s decision in Ashcroft v. Iqbal. Some of the papers presented at this Symposium present the view that Bell Atlantic Corp. v. Twombly, as applied in Iqbal, drastically altered the interpretation and application of the iconic words of Rule 8(a). But that understanding is far from monolithic, in the bench, the bar, or the academy. Some judges, lawyers, and scholars question the extent to which the pleading standards have changed, pointing out that Twombly and Iqbal are but the latest in a series of cases interpreting Rule 8; reminding us that many of the basic premises of Twombly and Iqbal—such as requiring more than a recitation of the elements of the claim and not assuming the truth of conclusory allegations in analyzing a motion to dismiss—have been commonly applied in courts for years; and reminding us that Twombly denied imposing a heightened or fact pleading standard and that Iqbal stated that it was applying the Twombly standard. The common-law process has continued; a body of appellate court cases has emerged interpreting Twombly and Iqbal. And since Iqbal, bills have been introduced in Congress to address the pleading standard in the federal courts.
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