Monday, January 18, 2010

"Iqbal and the Slide Toward Restrictive Procedure"

Washington & Lee University School of Law Professor A. Benjamin Spencer published a law review article titled "Iqbal and the Slide Toward Restrictive Procedure" in the Lewis & Clark Law Review.  The article, which can be cited: Spencer, A. Benjamin, Iqbal and the Slide Toward Restrictive Procedure (January 11, 2010). Lewis & Clark Law Review, Vol. 14, No. 1, 2010. Available at SSRN:, can be viewed HERE.  The SSRN abstract states:
Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscores the substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal’s factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits judges to reject pleadings based on their own predilections or “experience and common sense.” Such an approach undermines consistency and predictability in the pleading area and supplants, in no small measure, the traditional fact-finding role of the jury. Second, the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Thus, although Iqbal ultimately does not go much further than Twombly in reshaping civil pleading standards, the decision is an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years.


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