The Indeterminacy of Iqbal

Abstract

How significant an effect will the Supreme Court’s decision in Ashcroft v. Iqbal have on the ability of plaintiffs to vindicate substantive rights in federal court? To date, most commentators have argued Iqbal’s effect will be substantial, echoing Justice Ginsburg’s view that the Court “messed up the Federal Rules” governing civil litigation.

This Article questions that understanding. Although it is clear that Iqbal requires courts to perform a new fact-screening function at a motion to dismiss, the Court’s decision did not address several features of that function, including (1) the threshold of plausibility a complaint must possess to survive a motion to dismiss; (2) the sources of information a court may rely on to substantiate its “judicial experience and common sense”; (3) whether discovery is allowed at the beginning of a case before a motion to dismiss is decided; and (4) whether the complaint in Swierkiewicz v. Sorema remains a viable model in employment discrimination cases. Moreover, there are reasonable arguments that these and other issues concerning Iqbal’s application should be resolved in a manner amenable to the vindication of substantive rights.

Iqbal’s effect on federal practice is not as certain as critics to date have assumed. To understand the Iqbal screening model and its effect on federal litigation, courts and commentators will need to grapple with the many interpretative questions the Court’s decision left open.

Keywords: Iqbal, pleading

JEL Classification: K41