Souter: Can We Have a Do-Over, Please?


The Times’ Adam Liptak continues his exceptional reporting with a column today on the impact of the Supreme Court’s decision in Iqbal v. Hasty.  Here is an excerpt:

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Liptak also quotes Justice Souter dissenting from the majority’s decision in Iqbal.  What he does not mention, however, is that Souter had authored the opinion that really gave birth to this new “plausibility” standard: Bell Atlantic Corp. v. Twombly.  Whether Souter envisioned when writing Twombly that his opinion would one day be interpreted by his colleagues to impose an even stricter standard of pleading and thus make it harder for plaintiffs to have their claims heard by a jury will probably remain a mystery.  There is little doubt, however, that Souter was kicking himself in Iqbal for having had a hand in that process.

The full story can be found here.

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