Law, Facts, and Power

15 Pages Posted: 22 Jan 2010 Last revised: 18 Feb 2010

See all articles by Elizabeth G. Thornburg

Elizabeth G. Thornburg

Southern Methodist University - Dedman School of Law

Date Written: January 21, 2010


The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself - both in the already notorious pleading section of the opinion, and in the much-less-noted section on whether the Court even had jurisdiction over the case, which also turned on the distinction between law and fact. Iqbal further demonstrates the power issues that lurk below the “law” and “fact” labels. The Court’s misuse of the law/fact divide allocates authority to judges rather than juries, and gives appellate judges the power to review those decisions with no deference to the trial court. In addition, by using a case to change the long-established interpretation of a procedure rule, Iqbal allowed the Supreme Court itself to avoid the transparent and participatory process for amending the Federal Rules of Civil Procedure, and altered the balance of power between the Court and Congress.

Keywords: pleadings, Federal Rules of Civil Procedure, courts, Iqbal, Twombly

JEL Classification: K40, K41

Suggested Citation

Thornburg, Elizabeth G., Law, Facts, and Power (January 21, 2010). Penn State Law Review, Vol. 114, No. 1, 2010, SMU Dedman School of Law Legal Studies Research Paper No. 56, Available at SSRN:

Elizabeth G. Thornburg (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 0116
Dallas, TX 75275
United States
214-768-2613 (Phone)
214-768-3142 (Fax)

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