I Could Have Been a Contender: Summary Jury Trial As a Means to Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution

42 Pages Posted: 18 Aug 2010 Last revised: 5 Jan 2011

Nancy Welsh

Pennsylvania State University, Dickinson Law

Date Written: August 17, 2010

Abstract

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive marginalized claimants - and our society - of alternative, effective avenues for the airing and resolution of disputes with powerful institutional players. Ironically, it was just this sort of deprivation that led the Supreme Court to announce its expansive vision of notice pleading in Conley v. Gibson. Conley foretells the need for our courts to maintain a robust public forum for those who are marginalized by the default procedures of normal life - not only to provide redress to the parties directly involved in particular disputes but because the viability of such a forum has the indirect and salutary effect of forcing institutional players to find a way to sufficiently approximate the fair dialogue and resolution modeled in our courts. In an attempt to acknowledge legitimate concerns regarding the inefficiency and costs of today’s civil litigation process in some cases, while still protecting the courts’ essential role in providing a forum for marginalized parties, this Article will suggest that courts take a second look at the summary jury trial, an expedited form of trial conducted before an advisory jury and followed by negotiation or mediation between the parties and their lawyers. Relatively early and appropriate use of this process could effectively prompt resolution and dialogue - i.e., private dialogue between the parties before the process is to occur; a stylized form of public dialogue during the trial phase of the process itself; and another private dialogue, potentially with assistance from a judge or mediator, after the advisory jury has been dismissed.

Keywords: Iqbal, Twombly, Conley, pleading, motion to dismiss, 12(b)(6), dispute system design, discrimination, discriminate, employment, negotiate, negotiation, mediate, mediation, summary jury trial, discovery, Federal Rules of Civil Procedure, Rule 8(a), access to the courts, civil rights, notice pleading

Suggested Citation

Welsh, Nancy, I Could Have Been a Contender: Summary Jury Trial As a Means to Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution (August 17, 2010). Penn State Law Review, Vol. 114, No. 4, p. 1149, 2010; The Pennsylvania State University Legal Studies Research Paper No. 26-2010. Available at SSRN: https://ssrn.com/abstract=1660637 or http://dx.doi.org/10.2139/ssrn.1660637

Nancy Welsh (Contact Author)

Pennsylvania State University, Dickinson Law ( email )

333 West South Street
Carlisle, PA 17013
United States
717-241-3508 (Phone)
717-240-5126 (Fax)

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