Iqbal, Procedural Mismatches, and Civil Rights Litigation

28 Pages Posted: 5 Mar 2010 Last revised: 11 Mar 2010

See all articles by Howard Wasserman

Howard Wasserman

Florida International University (FIU) - College of Law

Date Written: March 3, 2010


Understanding the twin pleading cases of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal from the vantage point of only a few months (or even years) requires as much prediction as explanation. Early confusion is a product of the long-heralded link between substance and procedure. What we are seeing now may be less about Court-imposed changes to procedure as about changes to substantive law and a “mismatch” between new substance and the old procedure of the Federal Rules. Much of the current business of federal courts involves constitutional litigation under 42 U.S.C. § 1983 and Bivens, a species of civil action unheard of when the Federal Rules and the system of notice pleading and broad, wide-ranging discovery were created in 1938. That pleading system arguably does not work with such “modern” litigation and Iqbal reflects the Court’s effort to make federal pleading and discovery rules more consistent and more functional with this particularly vulnerable area of new federal substance. Unfortunately, the greater detail demanded by the new pleading rules may be impossible in many civil rights cases, where plaintiffs cannot know or plead essential information with particularity at the outset without the benefit of discovery - discovery that Iqbal stands to deny to plaintiffs who fail to plead with the necessary detail. The predictable result, illustrated by one Ninth Circuit decision just two months after Iqbal, will be a significant decrease in enforcement and vindication of federal constitutional and civil rights.

Keywords: Pleading, Iqbal, Twombly, Civil Rights, Bivens, Procedure

Suggested Citation

Wasserman, Howard, Iqbal, Procedural Mismatches, and Civil Rights Litigation (March 3, 2010). Lewis & Clark Law Review, Vol. 14, p. 157, 2010, Florida International University Legal Studies Research Paper No. 08-32, Available at SSRN:

Howard Wasserman (Contact Author)

Florida International University (FIU) - College of Law ( email )

University Park, DB 2065
Miami, FL 33199
United States
305-348-7482 (Phone)

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