Volume 14 / Number 1 / Spring 2010



The Substantive Origins of “Plausible Pleadings”:
An Introduction to the Symposium on Ashcroft v. Iqbal

Edward Brunet

Iqbal’s use of the word “plausible” as the new standard for Rule 12(b)(6) motions is confusing at several levels. First, plausible, used as a procedural standard twenty-two times in the Iqbal majority opinion, comes with a substantive past. The Matsushita decision utilized plausible or variations on plausible in a substantive sense to mean that a claim “makes no economic sense.” This use of plausible embraces economic theory and bears little resemblance to a procedural tool as set forth in Iqbal. Second, the Matsushita decision used plausible in the context of a defendants’ motion for summary judgment. Indeed, Matsushita’s majority used variations on plausible thirteen times, perhaps causing some lower courts to adopt plausibility as a surrogate new standard for assessing summary judgment. Of course, the 1986 summary judgment trilogy clearly articulated a new directed verdict standard for assessing Rule 56 requests. But all those plausibility usages in Matsushita created a feeling that the word has a significant procedural role to play and created further confusion. Was the Court in Twombly and Iqbal trying to collapse two standards, Rule 12(b)(6) and Rule 56 into one? This brief Essay argues that the choice of plausible in Iqbal and Twombly was a mistake and that this mistaken word selection should not affect summary judgment, a very different process than the motion to dismiss for failure to state a claim.

The New Summary Judgment Motion:
The Motion to Dismiss Under Iqbal and Twombly

Suja A. Thomas

This Symposium Article argues that the motion to dismiss is the new summary judgment motion. In Iqbal v. Ashcroft and Bell Atlantic Corp. v. Twombly, the Supreme Court created a new standard for granting motions to dismiss under Rule 12(b)(6). Under the standard, a court decides whether a claim is plausible. This new plausibility standard is converging with the standard for summary judgment under Rule 56. Not coincidentally, the motion to dismiss appears to be having some of the same effects as summary judgment, including on the dismissal of employment discrimination claims. Moreover, as a result of the similarities between the motion to dismiss and the summary judgment standards, the Supreme Court case of Swierkiewicz v. Sorema N.A., which concerned the standard by which courts dismiss employment discrimination claims under Rule 12(b)(6), effectively may be dead. This Article concludes that the differences between the motion to dismiss and summary judgment call into question the propriety of Iqbal and Twombly.

Federal Pleading and State Presuit Discovery

Scott Dodson

This Article explores the role that state presuit discovery could play in rectifying the information imbalance caused by Twombly and Iqbal— when a plaintiff in federal court requires information in the hands (or minds) of defendants or third parties in order to properly plead her claim, but such information is not discoverable unless the claim can survive a motion to dismiss. First, this Article provides an account of the development of federal pleading standards from before Twombly through their current post-Iqbal state. Second, this Article describes the effects of the post-Iqbal federal pleading standards and highlights the harsh results that they can have when the plaintiff is confronted with information asymmetry. Third, this Article describes various state law presuit discovery tools that are available to be used by plaintiffs who fear dismissal under the federal pleading standards. It then considers whether they can be an effective tool for avoiding dismissal, in light of both their utility and their limitations. Finally, this Article argues that both the availability and limitations of state presuit discovery options support amending the federal rules to provide for federal presuit discovery.

Front Loading and Heavy Lifting: How Pre-Dismissal Discovery
Can Address the Detrimental Effect of
 Iqbal on Civil Rights Cases

Suzette M. Malveaux

Although the Federal Rules of Civil Procedure are trans-substantive, they have a greater detrimental effect on certain substantive claims. In particular, the Supreme Court’s recent interpretation of Rule 8(a)(2)’s pleading requirement and Rule 12(b)(6)’s dismissal criteria—in Bell Atlantic v. Twombly and Ashcroft v. Iqbal—sets forth a plausibility pleading standard which makes it more difficult for potentially meritorious civil rights claims alleging intentional discrimination to survive dismissal. Such claims are more vulnerable to dismissal because: plaintiffs alleging intentional discrimination often plead facts consistent with both legal and illegal conduct; discriminatory intent is often difficult, if not impossible, to unearth pre-discovery because of informational inequities between the parties; and the plausibility standard’s subjective nature fails to provide sufficient guidance to courts ruling on dismissal motions. This increased risk of dismissal threatens to undermine civil rights enforcement, compromise court access, and incentivize unethical conduct.

In response to this risk, courts are empowered and encouraged to utilize narrow, targeted, pre-dismissal discovery to determine plausibility at the pleading stage (“plausibility discovery”) so that the trans- substantive application of the Rules does not work an injustice against civil rights and other cases involving informational inequities. Courts should consider permitting some limited discovery towards the front of the litigation (front loading) for the purpose of determining a case’s viability (heavy lifting). Courts already use early, targeted, pre-merits discovery to resolve threshold issues such as class certification, qualified immunity and jurisdiction. These models, while imperfect, illustrate how courts are willing and able to order clearly defined, narrow discovery to successfully resolve various preliminary litigation matters. Similarly, plausibility discovery is authorized and justified on policy grounds. This Article concludes with the types of arguments parties are likely to make post- Iqbal and a roadmap for how courts can order plausibility discovery while equitably balancing the parties’ competing interests.

Iqbal, Twombly, and the Lessons of the Celotex Trilogy

Hillel Y. Levin

This Essay compares the Twombly/Iqbal line of cases to the Celotex trilogy and suggests that developments since the latter offer lessons for the former. Some of the comparisons are obvious: decreased access and increased judicial discretion. However, one important similarity has not been well understood: namely that the driving force in both contexts has been the lower courts rather than the Supreme Court. Further, while we can expect additional access barriers to be erected in the future, our focus should be on lower courts, rather than other institutional players, as the likely source of those barriers.

Iqbal, Procedural Mismatches, and Civil Rights Litigation

Howard M. Wasserman

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 Iqba l, will be a significant decrease in enforcement and vindication of federal constitutional and civil rights.

Iqbal and the Slide Toward Restrictive Procedure

A. Benjamin Spencer

Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscores the substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal’s factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits judges to reject pleadings based on their own predilections or “experience and common sense.” Such an approach undermines consistency and predictability in the pleading area and supplants, in no small measure, the traditional fact-finding role of the jury. Second, the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Thus, although Iqbal ultimately does not go much further than Twombly in reshaping civil pleading standards, the decision is an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years.

“I Do Not Think [Implausible] Means What You Think It Means”: 
Iqbal v. Ashcroft and Judicial Vouching for Government Officials

Tung Yin 

The Supreme Court’s use of a “plausibility” standard to order the dismissal of a plaintiff’s civil rights action in Ashcroft v. Iqbal has been criticized on a variety of grounds. In this Article, I argue that even if Rule 12(b)(6) of the Federal Rules of Civil Procedure does and should contain such a plausibility standard, the application of that standard to Iqbal’s allegations is utterly unpersuasive. The Court could have used qualified immunity to grant relief to the government-official defendants instead of declaring implausible Iqbal’s allegation that he was subjected to harsh detention conditions due to his being Pakistani and Muslim. There are, in the pages of the federal reporters, decisions in which trial and appellate courts have sustained civil rights complaints against motions to dismiss. Those complaints, like Iqbal’s, alleged conspiracies to target persons based on race or other such characteristics. Therefore, the Court’s decision in Iqbal can, in essence, only be understood as vouching improperly that these defendants would not have acted in the ways alleged.

Iqbal and Bad Apples

Michael C. Dorf

In addition to its important implications for federal civil procedure, the Supreme Court’s decision in Ashcroft v. Iqbal put the imprimatur of the Supreme Court on a troubling narrative of the excesses carried out by the Bush Administration in the name of fighting terrorism. In this “few-bad-apples narrative,” harsh treatment of detainees—especially in the immediate wake of the attacks of September 11th, but also years later in such places as Afghanistan, Iraq, the Guantanamo Bay detention center, and elsewhere—was the work of a small number of relatively low-ranking military and civilian officials who went beyond the limits of the law. The actions of these few bad apples, the narrative goes, were regrettable but not the result of official policy. Actions and statements by both the Bush and Obama Administrations promulgated the few-bad- apples narrative. Careful parsing of both the complaint and the Supreme Court opinion in Iqbal shows that in dismissing allegations that high-ranking officials in the Bush Justice Department ordered discriminatory abuse of detainees, the Court accepted that flawed narrative.

The Implausible Alien: Iqbal and the Influence of Immigration Law

Juliet P. Stumpf 

This Article addresses the subterranean impact of immigration law on the outcome of Ashcroft v. Iqbal, a watershed case for civil pleading standards. In a new generation of cases seeking remedies for alleged mistreatment by high-level government officials, immigration law is exercising a quiet but powerful influence. Due to Iqbal, that influence will have a tremendous impact on the survival of civil complaints generally. The Supreme Court’s adoption of a heightened civil pleading standard results from the limits that the immigration context placed on the scope of Iqbal’s claims. This Article unearths the relevance of Iqbal’s immigration status through comparison with two cases that apply Iqbal’s holding to U.S. citizens in circumstances strikingly similar to Iqbal’s, yet rule in favor of the plaintiffs. In each case, the courts seized upon U.S. citizenship as the distinction that made the difference. The Article concludes that Iqbal relies on a questionable subtextual link between immigration law, national security, and ethnicity and religion.

National Security and Bivens After Iqbal

Stephen I. Vladeck

Given the significance of the Supreme Court’s holding vis-à-vis pleading standards in Ashcroft v. Iqbal, it is entirely understandable that most commentators have largely neglected the majority’s other holding in the same case—its rejection of superior responsibility as a viable basis for liability under the Bivens doctrine.

This Essay suggests to the contrary that Iqbal deserves to be seen as an important part of a series of judicial decisions arising out of the government’s conduct after September 11th in which courts have further narrowed the scope of the Bivens remedy in cases implicating undifferentiated national security considerations, usually (albeit not in Iqbal itself) concluding that such concerns are a “special factor counseling hesitation” in inferring a Bivens remedy. Iqbal thus provides an important opportunity to reflect on these less prominent lower court decisions, for it demonstrates both why such a formulation is inconsistent with the animating principles behind Bivens and how the Court completely missed the opportunity to clarify why national security concerns might actually counsel in favor of liability, rather than against it.

As this Essay argues, in “national security” cases in which there is a greater likelihood that other remedies (both legal and political) will generally be unavailable and that government officers, for all of the right reasons (and some of the wrong ones), will push the proverbial envelope, other doctrines, including qualified immunity, the state secrets privilege, and governmental indemnification, will generally shield those officers who acted reasonably and/or within the scope of their employment, in
addition to that governmental conduct which must remain secret. But it is precisely in cases in which these mechanisms do not forestall liability that a Bivens remedy is so important, for Bivens will invariably provide the sole means of obtaining any form of redress after the fact for conceded violations of clearly established constitutional rights.

Constitutional Torts, Over-Deterrence and
Supervisory Liability After Iqbal

Sheldon Nahmod

In Ashcroft v. Iqbal, the Court conditioned supervisory liability under § 1983 and Bivens on direct constitutional violations by supervisors. This decision conflicts with the causation approach, under which supervisory liability could be based on the causal link between the supervisor’s knowledge of unconstitutional conduct by the supervisor’s subordinates and the plaintiff’s constitutional injuries—which was conceded by the defendants in Iqbal and was the prevailing standard in the circuits prior to the decision in that case. In this Article, I explore the Court’s growing concern with over-deterrence of government officials in § 1983 and Bivens cases, and describe how it led to this substantive change in the law of supervisory liability. I discuss the standard in the circuits prior to Iqbal and explain why the constitutional approach adopted in Iqbal is the better one based on the language and legislative history of § 1983, as well as relevant policy considerations. I also address the deficiencies of the Iqbal decision and argue that the constitutional approach may not improve the over-deterrence problem. Finally, I analyze the inconsistencies between Iqbal and other § 1983 cases, but conclude that, in spite of its flaws, Iqbal got supervisory liability right.



If You Build It, They Will Come: Preserving Tribal Sovereignty in the Face of Indian Casinos and the New Premium on Tribal Membership

Suzianne D. Painter-Thorne

This Article considers recent disputes over membership decisions made by American Indian tribal governments. Since Congress passed the Indian Gaming Regulatory Act in 1988, Indian casinos have flourished on some tribal reservations. Some argue that the new wealth brought by casinos has increased fights over membership as tribes seek to expel current members or refuse to admit new members. It is difficult to discern whether there are more disputes over tribal enrollment as a consequence of gaming or whether such disputes are now more public because gaming has brought tribes to the forefront of U.S. culture. What is clear is that enrollment disputes are receiving increased attention, resulting in calls for some change to address what many perceive as a fundamental unfairness in tribal decision making.

Aggrieved members’ attempts to resort to federal or state court are blocked due to a lack of federal subject matter jurisdiction, standing, and because of the tribes’ sovereign immunity. Activists and courts have sought to change this, seeking to curtail the tribes’ sovereign immunity, expand federal court jurisdiction to permit oversight, or otherwise impose U.S. law on tribal membership decisions. Scholars are divided, with some arguing for the abrogation of immunity or sovereignty, while others argue that the tribes’ decisions are sacrosanct. Still others argue over how the tribes should define membership—contending that it should be based on cultural identity, political participation, blood quantity, or even DNA.

This Article argues that the focus should instead be on solutions that come from within the tribes. For too long the tribes have suffered from the imposition of legal and cultural norms that do not reflect their identity or culture. Because a tribe’s right to define its membership lies at the heart of its sovereignty, the solution is more, not less, sovereignty for the tribes. To remedy the impasse, I propose that tribes create separate independent judicial bodies, or an intertribal appellate court that would provide independent review of tribal membership decisions.



“We Are on the Move”
Second Annual Dr. Martin Luther King, Jr. Lecture

Gerald Torres

Professor Torres explores the idea of “racial literacy” by working through a series of examples where being able to “read” race mattered. Reading race correctly helped policy makers and advocates understand the real problem and helped craft solutions that were generally beneficial by addressing structural defects not just individual bad actors.



A New Use for the Responsible Corporate Officer Doctrine: Prosecuting Industry Insiders for Mortgage Fraud

Christina M. Schuck

Mortgage fraud is widely perceived as the driving force behind the meteoric rise and fall of the housing market. Although the United States government expends substantial resources attempting to combat mortgage fraud, the legal doctrines currently used to prosecute those responsible are insufficient. Directly prosecuting the corporations responsible could exacerbate the fragile status of American banks, while directly prosecuting mortgage professionals is not feasible unless the executive directly and affirmatively encouraged false statements. This Note posits that the rarely-used, but far-reaching, Responsible Corporate Officer (“RCO”) doctrine could be used to prosecute mortgage fraud. Unlike charges of aiding or abetting, the RCO doctrine only requires that the officer be aware of the wrongdoing and have authority to end the wrongdoing. As such, the RCO doctrine would be an effective tool for prosecuting executives of corporations most culpable for mortgage fraud.

Sweatshop Liability: Corporate Codes of Conduct and the Governance of Labor Standards in the International Supply Chain

Debra Cohen Maryanov

Outsourcing the manufacture of apparel to suppliers in developing countries is a common practice among multinational corporations (MNCs). MNCs leverage cheap labor and lax regulations abroad to support a business model that prioritizes low costs to maximize profits. While this strategy has been successful to date, external costs threaten its continued viability. This Comment observes that apparel outsourcing contributes to an international infrastructure of sweatshop labor, characterized by unsafe and exploitative labor conditions for millions of workers. MNCs recognize that Americans are uneasy about sweatshop labor conditions, as evidenced by national polls and consumer purchasing practices. Perhaps the most prominent response by MNCs has been the voluntary adoption of codes of conduct that declare minimum labor standards for suppliers, typically self-enforced by the MNC or a monitoring company hired by the MNC.

This Comment argues that the current implementation of these codes fails to eliminate sweatshop conditions and leaves MNCs that rely on them vulnerable to the costs of superseding government oversight and civil liability. Following an analysis of these risks, this Comment concludes that MNCs may preserve the privilege of self-regulation and avoid costly lawsuits by adopting a business model that prioritizes sustainability and refashioning their codes of conduct to support that model.