Thanks all for the helpful comments, and thanks especially to the DUI attorneys who seem so interested in the intersection between qualified immunity and pleading standard. (Joke.)
Before I wrap up discussing this article, I thought I’d respond to some comments I got throughout this series.
An early commenter posed the question of whether constitutional rights could be established by means other than § 1983 litigation, for example on habeas review or criminal appeals. The answer to this question is obviously yes — but only with regard to criminal law. And even then, many cases (for that matter, Saucier itself) arise out of underlying criminal cases. So at a minimum, this affects all civil rights claims that don’t arise out of underlying criminal cases, and those criminal cases that would otherwise be litigated by way of § 1983. (In subsequent posts, I discussed the race discrimination example. There are others: employment discrimination, free speech/press/religion claims, for example, and virtually all sorts of litigation that seeks injunctive relief, particularly structural injunctive relief. Probably none of these could be litigated if the only means of “clearly establishing” the law was by way of criminal appeals or habeas.)
The first commenter also raised Article III issues, namely, whether Saucier sequencing raises the problem of advisory opinions. Judge Leval on the Second Circuit has discussed this issue recently, essentially agreeing that there is a problem. Shortly before Pearson was decided, Sam Kamin wrote a persuasive article responding to the Article III concerns. I don't focus on those issues here; his article is a good one on that point.
Another, more "from-the-trenches" view, supporting Iqbal, came from a district court intern, who pointed out that Iqbal simply facilitates the dismissal of "claims that do not have merit". Let's just stipulate that frivolous lawsuits ("The president is spying on me and thus violating my constitutional rights") will be dismissed under any standard. Once those claims are bracketed, the point becomes question-begging. Recall that Rule 12(b)(6) motions are to be granted when the plaintiff fails to state a claim on which relief can be granted. Let’s say you experience some really invidious racial discrimination. If you come into court with a lawsuit that says “I suffered really invidious racial discrimination”, you will lose on a motion to dismiss even though your claim “has merit”. The work that Iqbal does is to tell you how much detail you need to plead so as not to get thrown out of the courthouse, not whether your claim, as such, is meritorious.
And, as another commenter pointed out: yes, a lot of these criticisms apply to Twombly as well. The real issue with Iqbal, though, is that there was some confusion pre-Iqbal as to the applicability of Twombly. And, because Iqbal arose in the civil rights context, it is reasonable to expect it to have its greatest impact there.
4:43 on 3/16 and Craig’s exchange is a good one as well. It really illustrates the problem of identifying “clearly established” law. 4:43 suggests that, in the school discrimination context I cited, perhaps race and sex discrimination are different, and the problem I identify is illusory. But as Craig points out, the very fact that we don’t really know makes the law “not clearly established”, so the claim could easily get kicked. The only way to avoid that is to plead more generally, which leads to the interaction (Iqbal) problem.
Finally, in response to a commenter — no, I don’t know of any courts so far that have caught on to this. But I hope they do soon!
In my next post, and my last post on this article, I’ll wrap up with a few thoughts on “procedural judicial activism”.