By Gwyneth K. Shaw
From the moment the U.S. Supreme Court handed down its Ashcroft v. Iqbal opinion in May 2009, the decision rocked the field of civil procedure.
The court’s basic holding — that plaintiffs needed to present a “plausible” cause of action in order to survive a defense motion to dismiss — raised the threshold for plaintiffs in all civil cases to match a similar decision affecting antitrust suits outlined in the 2007 Bell Atlantic Corp. v. Twombly decision. Immediately, scholars and practitioners raised serious questions about whether the two cases would essentially lock the courthouse doors for some plaintiffs ahead of the critical discovery phase, particularly those seeking relief from discrimination or civil rights violations.
The debate has continued for more than a decade and a half. Recently, UC Berkeley Law and the student-run California Law Review hosted a symposium bringing academics, judges, and lawyers who’ve dealt with the fallout of Iqbal together to consider what we know about what’s changed, what hasn’t, and where the rules governing civil pleading standards should go looking ahead.
“Iqbal at 15” examined what UC Berkeley Law Professor Andrew D. Bradt called “Iqbal’s teenagehood,” starting with a panel summing up some of what scholars have been able to glean about the impact of both pleading cases.
Changing perspectives
Seattle University School of Law Professor Brooke Coleman gave an overview of how Twombly and Iqbal “catalyzed a shift” in civil procedure scholarship in three ways: Through a boom in empirical research, a move toward studying state courts as an alternative example, and the entrance of a critical legal perspective that hadn’t been applied much to the field.
“It’s really important for us to be doing work from all these broad perspectives, and the more diverse our tools and our perspectives, the better,” she said. “Iqbal is and will always be an incredibly controversial case, but it has created a little bit more space for scholars to ask bigger questions, to use different skills, and to hopefully expand the influence of our collective scholarly enterprise.”
UC Berkeley Law Professor Jonah B. Gelbach, one of several symposium attendees who have written extensive empirical analyses of Iqbal, proposed amending Rule 12 of the Federal Rules of Civil Procedure to address some of the pleading concerns post-Twombly and Iqbal. Allowing judges to permit plaintiffs to access some information from defendants through a narrowly focused “plausibility discovery” would give plaintiffs with meritorious claims enough information to make a stronger case and, ideally, allow judges to make more informed decisions about defense motions to dismiss.
“This would make it easier for plaintiffs in these asymmetric information cases to get access to the discovery that they need to plead plausibly without sandbagging the gains that I do think the plausibility standard presents,” he said.
Senior U.S. Ninth Circuit Court of Appeals Judge William Fletcher, a UC Berkeley Law professor before being appointed to the bench, moderated a panel featuring practitioners talking about Iqbal’s impact. The group included renowned plaintiff’s lawyer Elizabeth Cabraser ’78 and Josh Gardner, who recently moved to DLA Piper after 20 years at the U.S. Department of Justice.
Cabraser, a founding partner at Lieff Cabraser Heimann & Bernstein who specializes in complex civil litigation, used the Deepwater Horizon oil spill case as an example, noting that a motion to dismiss based on Iqbal was filed “while the smoke was still visible from the courthouse.” While she said her practice hasn’t seemed to suffer significantly because of the decision, it’s impossible to know what the alternative might look like because things that don’t happen can’t be measured.
“Has Iqbal resulted in meritorious claims not being filed?” she asked. “Do we have an access to justice problem from this decision?”
Emotional resonance
The symposium also featured a panel that’s somewhat unusual for an academic conference: a lineup of professors who teach Civil Procedure talking about how they approach Twombly and Iqbal and the impact on how students see the topic after reading the cases.
“It’s a big watershed moment in teaching Civil Procedure — there’s a before and an after. In my view, there’s a kind of loss of innocence that happens,” UC Berkeley Law Professor Emily Rong Zhang said.
Zhang assigns Stanford Law School Professor Shirin Sinnar’s article “The Lost Story of Iqbal” alongside the case itself. Sinnar, who joined Zhang and others on the panel, excavates the facts of Javaid Iqbal’s experience separate from the broader impact on pleading standards. Aided by an interview with Iqbal himself in Lahore, Pakistan, Sinnar draws in the racial and religious overtones of Iqbal’s detention by the government, his fight for accountability for his physical abuse while in jail, and the lasting impact of being labeled a terrorist after being deported.
“They get upset,” Zhang said of her students. “And the reason they’re upset is because they know it matters. They know the way that procedure is being used.”
During her presentation, Sinnar said she’d been in touch with Iqbal recently and told him about the symposium, then played a three-minute audio recording of him reflecting on the U.S. justice system — riveting the room.
Sinnar said she feels an obligation to expose students to discussions about race and the use and abuse of power, especially at a time of new crises for the rule of law.
“For me, it’s important to surface these issues in our classrooms … This case, although we have a lot to cover and a lot of procedural lessons we want to impart, is also an opportunity to highlight similar questions in a different context. So what do we make of the federal government’s actions? What do we make of the Supreme Court’s casual validation of racial profiling? What do we make of the court’s desire to protect government officials from the burdens of litigation when national security is at stake?”
On the horizon
The final panel looked into the future. Stanford Law School Professor Nora Freeman Engstrom outlined how so-called Lone Pine orders, named for a 1986 New Jersey case, are quietly affecting access to courts, particularly in mass tort cases.
“Even as we all evaluate the effect of Iqbal — which made it harder, at least somewhat, for plaintiffs to survive a motion to dismiss — we need to recognize that district courts, trial courts, on their own, are fashioning DIY mechanisms that add to the burden,” she said.
Stanford Law School Professor David Freeman Engstrom posed a provocative question: Is it possible that Iqbal was more important to civil procedure scholars, both in terms of research and their teaching, than to the actual legal system?
University of Chicago Law School Professor William Hubbard wondered whether that would be such a bad thing.
“We as law professors should be asking ourselves, not ‘what is the average case doing in the law?’ We should say, ‘what are the hard cases? What are the cases that challenge us? What are the cases that test and perhaps even confound and perplex us? What are the cases that force us to confront deeper questions about institutional design, distributions of power, litigation strategy, inequality, and bias in our society?’” he said. “Even if, just for the sake of argument, Twombly and Iqbal were substantively insignificant and they’re more important for civil procedure professors than the litigation world, I don’t think that’s a problem.
“I think we’re doing exactly what we should be doing, because these are cases that force us to test and examine our intuitions about the law and to confront the very deep questions that we’ve all discussed.”