Epistemic Injustice and Procedural Gatekeeping

31 Pages Posted: 26 Sep 2017

Date Written: September 23, 2017


The empirical impact of the pleading change in Iqbal and Twombly has been hotly debated. These debates have focused on a number of related questions: whether raising the pleading standard has resulted in more dismissals across the board or just for certain kinds of claims, whether it has changed dismissal rates at all, and whether we can even measure the impact. This Article will take as a starting point the research suggesting that the change in pleading standard has disproportionately affected civil rights claims. It then asks what could explain this result. If some plaintiffs are systematically invisible to or misunderstood by judges, empirical investigation may not provide an explanation for this. For some plaintiffs, the law functions by adopting modes of internal exclusion — modes that find those plaintiffs’ claims silly, simple, or irrelevant, in short, not worthy of judicial resources. Their problems are, in Catharine MacKinnon’s words, “outside the scope of legitimacy.” In this Article, I argue that the philosophical literature on epistemic injustice explains this phenomenon and suggests some interventions.

In Part 2, I review the change in the pleading standard and the empirical research on its effects, highlighting the research suggesting that the change has disproportionately affected civil rights claims.

In Part 3, I offer a brief introduction to the field of feminist epistemology.

In Part 4, I argue that testimonial, hermeneutical, and contributory injustice provide a framework for understanding the increased, disproportionate rate of dismissals for civil rights claims.

In Part 5, drawing on the literature in epistemology, I offer some individual and structural interventions. On the individual side, I argue that judges should adopt a stance of humility and attorneys should draw on epistemic resources that will help them explain their clients’ situations to judges. On the structural side, I argue that the pleading standard should return to the Conley test. This would be effective both because it would bring the number of dismissals down and because it would allow claims more time to develop.

In Part 6, I conclude.

Keywords: Law, Philosophy, Epistemology, Epistemic Injustice, Civil Procedure, Civpro, Civ pro, Twombly, Iqbal, Twiqbal, Pleading, Motion to Dismiss, Injustice, Feminism, Critical Theory, Feminist Epistemology

Suggested Citation

Curtis, Annaleigh, Epistemic Injustice and Procedural Gatekeeping (September 23, 2017). Available at SSRN: https://ssrn.com/abstract=3041935 or http://dx.doi.org/10.2139/ssrn.3041935

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