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Iqbal and the Slide Toward Restrictive Procedure


A. Benjamin Spencer


University of Virginia School of Law

January 11, 2010

Lewis & Clark Law Review, Vol. 14, No. 1, 2010

Abstract:     
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.

Number of Pages in PDF File: 17

Keywords: Iqbal, Ashcroft, Twombly, pleading, Rule 8, complaint

JEL Classification: K00, K10, K40, K41

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Date posted: January 12, 2010  

Suggested Citation

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: http://ssrn.com/abstract=1535093

Contact Information

A. Benjamin Spencer (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434.924.3572 (Phone)
HOME PAGE: http://www.law.virginia.edu/lawweb/faculty.nsf/FHPbI/2299812

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