By Jeffrey Rachlinski. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)
This author welcomes responses to this abstract and the upcoming article. The author may be contacted at:
- Phone: (607) 255-5878
- Fax: (607) 255-7193
- Email: jjr7@cornell.edu
Abstract:
The papers in this symposium highlight three basic lessons of Iqbal. The first, and most widely noted, is the affirmation of the dramatic change in the pleading standards in federal court, first suggested in Twombly v. Bell Atlantic. Notwithstanding decades of precedent supporting the concept of notice pleading, plaintiffs must now adorn any conclusory statements about their claims with specific facts which must seem plausible to a judge. The second can be described as the increased power of the appellate courts to intervene in factual matters at the trial level. The Court seems to extend the concept of the collateral order doctrine and the willingness (also seen in Scott v Harris) to engage in factfinding on appeal. The third theme is a notable degree of deference the Court affords officers of the federal government from judicial scrutiny. The Court rejects theories of supervisory immunity and bristles at the notion of subjecting high officers to even the most indirect supervision that would accompany discovery.
Deconstruction of Iqbal‘s three lessons quickly reveals them to contain a unifying theme: reluctance to allow individuals to use access to the Courts (and discovery) as a means of scrutinizing institutional actors. As the papers for this symposium note, Iqbal‘s recent predecessors, Scott v Harris and Twombly, embrace deference to institutional actors. Iqbal‘s holding itself benefits agencies of the federal government most directly, a deference Scott v. Harris provides to local law enforcement. And Twombly reduces the ability of individuals to use the antitrust laws to investigate the possibility of corporate misconduct in the marketplace. Notice pleading, as Professor Welsh notes, ensures individuals a place at the table to negotiate with institutions. That place can now be secured only through navigating the murky new pleading standard Iqbal embraces.
Much can be said about the wisdom or folly of this radical uptick in deference to institutional actors that the Court has embraced, but any good social scientist should also ask why this change now? The “litigation explosion”, supposedly frivolous suits against government officers and corporations, and the cost of discovery are all bewhiskered complaints about notice pleading. These concerns have already generated decades of notable reforms (the PSLRA, Amendments to Rules 11, 16 and 26, etc). But none of these efforts have sparked the revolutionary change now moving through the federal courts. Iqbal and Tombly are now among the most cited cases in American Law. But why has the long backlash against notice pleading finally gotten legs now?
The answer might lie in multiple sources. Iqbal‘s holding arises from the events of 9/11 and, as Professor Wadhia’s paper noted, echoes past deference on national security matters in times of crisis, even at the point of sacrificing civil rights. But Scott v Harris and Twombly have no such connections. As Sternlight and Lazos nicely point out, however, judicial decisions are the products of human beings with particular biases and perspectives. The federal judicial is increasingly staffed with former institutional actors–largely prosecutors. And though they may deny it, the Supreme Court Justices may be increasingly influenced by exposure to the judge-controlled civil litigation procedures in other countries, as they more often meet with their international counterparts. Combined with an increasing tide of anti-plaintiff decisions in the Courts that has followed the decades-long drumbeat of complaints by industry, and a perfect storm emerges. Judges concerned about the costs of litigation to institutions, especially those involved in the War on Terror, with institutional experiences may feel competent to assess the allegations against institutions and businesses on the pleadings alone, even from the vantage point of the appellate bench.
It is often said that “a timid judge is a lawless judge.” But the Court has now authorized federal judges to act upon a remarkable degree of confidence in their judgment. Judges must now assess cases with little more than the pleadings and their own sense of how the world functions. As the papers in this symposium demonstrate, this outcome is new, but surely the result of a longstanding trend.