One of the recent challenges for Civil Procedure profs has been to explain the Twombly/Iqbal event to students already struggling to understand what often seems to be an arcane and highly contrived subject.
I begin by lowering expectations, showing a slide of a local federal judge with a caption depicting his reaction to Twombly – expressed on a panel discussing the case at a CLE seminar. “When I read this case,” he recalled, “I said ‘what the hell?'” I remember following the good judge’s remarks and saying that he had succinctly summarized Twombly and all that would follow would be mere elaboration. After Iqbal, I am afraid I still can’t do much better.
Except maybe I can.
It seems to me that the Court’s new plausibility standard has something to do with the likelihood that the plaintiff could have facts supporting the allegations being made, the ability of a factfinder to accurately infer those facts from circumstantial evidence and the difficulty in confirming whether or not the plaintiff will ultimately be able to make a prima facie case. I was a litigator for 25 years before becoming a full time legal academic (and still keep my hand in). I think that I have a good sense for when the plausibility meter is stuck in the zone in which, in the words of a local magistrate judge, a complaint must be “Iqballed.” But if its hard to translate that sense into a set of principles that courts can readily discern and apply, imagine how hard it must be to explain it to ILs.
The obvious irony, of course, is that the Iqbal majority – a group that, with the exception of Justice Kennedy – often calls for doctrine that has the value of clarity and predictability have endorsed a pleading standard that is anything but the sort. Like Justice Stewart and pornography, I think a know a deficient complaint when I see it. But it’s hard to say why.
Cross posted at Marquette University Law School Faculty Blog
Posted by Richard Esenberg on March 12, 2010 at 09:52 AM
Comments
I noticed this difficulty in my Civil Procedure professor last semester. However, I feel this is one of those divisions of law where constructing a discernible and lucid standard is impossible. The elements you mentioned seem to be the key factors weighed; but inevitably, application of the standard eventually converges towards the most common response in attorney consultations: ‘it depends.’ It is ironic that a profession built around endless rules of procedure, balancing tests, and tomes of laws, cannot prescribe a simple standard on how to get a plaintiff’s foot in the door.
Thanks for the interesting post, I aspire to prawf one day too.
Posted by: Aspiring Attorney | Mar 15, 2010 6:33:49 PM
Mark Anderson and Max Huffman have an excellent article available on SSRN that makes some sense of Iqbal and Twombly.
Posted by: Interested observer | Mar 15, 2010 3:12:13 PM
As a practicioner, I have to say that my fear isn’t the case cases which a judge “must” Iqbal, but the ones which a judge could choose to deem implausible for reasons of personal pique and bias.
Posted by: Adam B | Mar 15, 2010 12:29:30 PM