ost Americans believe they have the right to take their grievances to court. But in 2009, the Supreme Court’s ruling in M Ashcroft v. Iqbal imposed a new hurdle—one of several it has created for plaintiffs in recent years—that prevents many people from getting a hearing.
The procedural rules for our federal courts, established in 1938, were designed to provide relatively easy entrée. Civil Rule 8 required only a “short and plain statement” showing a right to relief. For over 60 years, the Supreme Court repeatedly said that plaintiffs need only give the defendants notice of their claims; proof of what actually happened was for trial. But in Iqbal, the Roberts Court drastically departed from the justice-seeking ethos of easy access. By doing so, it radically extended a process started two years earlier in Bell Atlantic v. Twombly, a potentially mammoth antitrust case against the telephone industry.
Iqbal was an emotionally charged outgrowth of 9/11. Javaid Iqbal, a Pakistani Muslim, claimed that numerous high-ranking federal officials, including Attorney General John Ashcroft and FBI director Robert Mueller, were aware of and condoned his illegal detention and harsh treatment in a Brooklyn facility, allegedly targeting him because of his race and religion. The legal issue was whether his pleading satisfied Rule 8. Instead of asking only whether Iqbal had given sufficient notice of his claims, the Court essentially rewrote the rule and insisted that his pleading had to state facts showing that his claim was “plausible,” a significantly more demanding standard than Rule 8 ever intended.
The Court didn’t have to go beyond the particular facts of Twombly or Iqbal, both of which were extremely unusual and unique. Yet in Iqbal, a 5–4 majority declared that this newly minted pleading standard should be applied in all federal civil cases. As a result, specific facts must now be alleged even in run-of-the-mill cases; if this isn’t done, the plaintiff will be dismissed.
And the reason? The Court’s opinions expressed concern only about the burden on corporate America of defending against claims, as well as the distraction and intrusion of litigation against government officials and agencies. The effects of closing the courthouse doors on individuals were barely acknowledged. Twombly and Iqbal exemplify the Roberts Court’s lack of confidence in the ability of federal trial judges to eliminate frivolous cases and control litigation costs and delay, and an even greater lack of confidence in the people who sit on juries.
The Court told federal trial judges to use their “judicial experience” and “common sense” to decide whether plaintiffs have “plausible” claims. That promotes judicial subjectivity, which inevitably will be influenced by each judge’s economic and social background, values, and attitudes. Realistically, the Court’s vague standard invites judges to guess at a case’s merits based solely on the complaint. But that is decision-making by paper, a far cry from our long-standing tradition of witnesses testifying before a jury in open court.
To obtain a hearing, plaintiffs must now have significant information about their claims before they sue. But many injured people simply don’t or can’t know what happened to them. Before Iqbal, plaintiffs could give notice of their claims and then find the relevant evidence. The discovery stage gives litigants the ability to obtain information they couldn’t get before bringing suit and levels the playing field so that each side has the same access to the facts, thereby promoting informed settlements, meaningful trials, and more accurate resolutions. By telling judges to dismiss cases they don’t think are “plausible” based only on the complaint, Iqbal steals the keys to discovery, preventing plaintiffs from unlocking vital information.
In Iqbal, the Roberts Court ignored the problem of information asymmetry and shifted the balance to favor those best able to keep their records, conduct, and secrets to themselves. In many contemporary litigation contexts, critical information—about, say, a drug’s harmful side effects, the flawed design of a household product, or a discriminatory hiring practice—is known to the defendant but unavailable to the plaintiff. Thus, the plaintiff—and the public—may never learn of a danger because a case may be dismissed as implausible without any discovery.
The Court’s new heightened pleading standard makes it extremely difficult for poor and middle-class people to bring suit. Lawyers are often reluctant to represent plaintiffs—especially on a contingent-fee basis—who have claims that will not easily meet the “plausibility” threshold. The costs and risks are too high. Some meritorious claims will never be asserted and, even if brought, will be attacked by dilatory and expensive defense motions. Plaintiffs without sufficient resources will be stopped at the courthouse door because it may be too time-consuming, costly, or simply impossible to uncover the necessary “plausible” facts.
The heightened pleading standard has been applauded by those who believe that corporate America and the government must be protected against expensive discovery. But, nonsensically, Iqbal’s threshold barrier applies even to the substantial percentage of federal cases that do not call for much, if any, discovery. For many types of cases, Iqbal’s cure seems worse than the disease. A heightened pleading standard is the wrong answer to overstated concerns about discovery. It is also inconsistent with our desire to have a justice-seeking procedural system. Our judges have other tools for separating the wheat from the chaff.
The consequences of the ruling are seismic. Along with other procedural obstacles devised by the Supreme Court,Iqbal not only denies meaningful access to federal courts but also undermines the enforcement of important public policies designed to protect millions of Americans. It is now harder to bring cases involving employment discrimination, civil-rights violations, defective products, and consumer injuries. Indeed, the rate of dismissal in these cases since Iqbal is quite striking.
The scales of justice have been tipped against citizen access, compromising our cherished day-in-court principle and the constitutional right to a trial by jury. A procedural system that creates barriers to access, promotes early termination of cases that may have merit, and erects hurdles that favor powerful companies or the government does not befit the truth-seeking aspirations of American civil justice. For many, Iqbal—along with other Roberts Court decisions in the past decade—represents a sign on the courthouse door reading closed.
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