Procedure, Substance, and Why Are We All Here?

Over at The Situationist (where I have blogged in the past), the staff has posted an essay considering the intersection of two topics: the tension between preferences and principle, as explicated by Knowles and Ditto, and statutory construction. Knowles and Ditto argue that people's preferences override their principles, that is to say, individuals' preferred outcome trumps whatever principles they claim to adhere to. The Situationist post draws a parallel between this and Llewellyn's famous critique of canons of construction. Llewellyn argued that each given canon had a "counter-canon", which was equally legitimate and could thus be used to reach the opposite result. Rather than using the principle to reach a conclusion, Llewellyn suggested that the judge decided on a result and chose the appropriate cannon. The Situationist post makes connections between Llewellyn's work and the more recent Knowles and Ditto piece. That post concludes:

Does this insight lead to the inescapable conclusion that the use of canons in statutory interpretation is inherently invalid? Not exactly. First, abolishing the use of canons would do nothing to solve the “problem” of results-based reasoning—judges could simply rely on other tools, such as legislative history, to provide post hoc rationalizations of their preference-based decisions. Legislative history is subject to the same critiques as the canons of construction; namely, that there is often legislative history support both sides of a debate, allowing judges to, as Justice Scalia put it,“look over the heads of the crowd and pick out your friends.” This argument is somewhat defeatist in that it seems to concede that the human decision-making process is inherently flawed. However, decision-making on the basis of intuition is not inherently invalid, and may actually “reflect adaptive insights accumulated over the course of human evolution.”

Further, our system requires judges to do more than simply declare “yes” or “no.” Federal Rule of Civil Procedure 52(a) requires judges to explicitly state their findings of fact and conclusions of law; this rule has three important ramifications to our topic. First, the very act of committing their reasoning to paper may reveal a judge’s logical inconsistency or suboptimal use of a canon to him or herself. Second, writing an opinion allows dissenting judges to file their own opinions in response; these dissents may reveal stronger arguments to judges in the majority. Finally, our appellate system allows incorrect legal conclusions made at the lower levels of the court system to be corrected by the high courts. This doesn’t entirely overcome the defeatist position, as having many biased decision-makers arguing about differing biased decisions solves very little in a search for an objective truth, but that stance presupposes the very existence of an “objective truth” – a topic far beyond the scope of this post. For now, we can take solace in the fact that even if Knowles and Ditto are correct in that the individual decision-making process isn’t quite as objective as we’d like, any judge’s individual decision must survive several rounds of checks and balances before becoming law.

I want to pick on this conclusion. First, the "several rounds of checks and balances" really provide that much "solace"? Dissenting opinions only come about (if at all) at the appellate level. Trial-court decisions are typically decided by a single judge (rare exceptions notwithstanding) and are not subject to dissent. Most decisions are not appealed, and most appeals are affirmed. The Supreme Court, as it reminds us many times, is not a court of errors and declines to hear the vast majority of cases presented to it. Even at the Supreme Court and the Courts of Appeals, the most common dispositions are unanimous decisions. (I have not dug up the citations for this post, but I make these points in my recent article on stare decisis.) I wonder if this does not give lower court judges a tremendous first-mover advantage, particularly in state courts where the volume of cases is much higher (thus leading to the risk of less robust processes of error-correction, such that they are). More broadly, this raises the question of procedural checks on substantive errors. That is, we believe that imposing certain procedural hurdles (written decisions, appellate review, published dissents) will work out substantive mistakes. But it is not at all clear or intuitive that this should be the way to work out problems in the law

The response might come, "Well what is the alternative? Substantive checks on substantive errors? That simply encourages the second decision-maker substitute his (biased and subjective) judgment for that of the first decision-maker." But this position is, in the terminology of the post, "defeatist". If we are all looking out at the crowd and picking friends, then we may as well call the whole enterprise off. I'll only agree with my friends, you with yours, and we cannot reconcile our positions.

That counter-argument actually has quite a bit of purchase. The political system is constructed essentially on that premise, deferring almost entirely substantive questions, and insisting instead that meticulous procedural arrangements are met (two senators per state, two houses of Congress, judicial review, presidential vetoes, the Electoral College, etc.). It is as if the founders were aware of Aristotle's three forms of government (he called them six, but Machiavelli later explained, there are really only three; each can be either good or bad) and created each of the three branches in the image of one of those three forms (rule of the one, executive; of the few, judicial; the many, legislative).

Substantive ideals are also advanced by procedural means. Consider our criminal justice system's pro-defendant tilt. You can imagine a conversation that runs something like this: "We do not want individuals wrongfully convicted of crimes. Therefore, we will presume innocence and not require testimony from defendants. Those defendants who are convicted will have the ability to appeal, though as a rule, the government may not appeal an acquittal. Even after meaningful judicial review, some cases may slip through the cracks. Therefore, we will allow post-conviction collateral attack on convictions by means of the writ of habeas corpus or an adequate substitute for the writ. Finally, we will even allow private actions against individual government employees means of 42 U.S.C. § 1983."

All of these elements exist in our system, but one must ask if these rights are robust or hollow. Although defendants are not required to testify, police officers routinely seek waivers of Miranda rights. Criminal appeals are often summarily affirmed. The right to habeas corpus is limited at best; petitioners -- who are often proceeding pro se -- must comply with labyrinthine procedural requirements or risk immediate and often-irreversible default. Although § 1983 actions are a theoretical remedy, they cannot be used to challenge the fact of confinement; any monetary awards are limited by the Prison Litigation Reform Act; and in any case government agents enjoy absolute or qualified immunity in many cases.

One could draw two conclusions from this landscape. First, we might despair that court decisions have eroded our commitment to criminal defendants' rights (this is similar to the point about procedural judicial activism I make in this piece). But second, we might take some comfort in the fact that various procedural protections exist. Though they may be less robust than they could be, they are certainly more robust than the alternative (no protections at all!). If we as a society will be psychologically predisposed against criminal defendants, then a pro-defendant "systemic bias" may serve as an adequate thumb on the scale to correct that bias.

Wechsler's and Llewellyn's heirs will carry the debate on for years hence. Going forward, we might ask that these debates be informed by empirical data about how we humans actually think (and how we think we think). I am reminded of Robert Maynard Hutchins's lecture in the 1930s where he noted that the law had devoted an entire subject, the rules of evidence, to how jurors will react to different types of evidence (expert testimony, lay testimony, hearsay, etc.) -- yet no one bothered to consult psychologists and other social scientists about whether the law's assumptions had any basis in reality or not, and the psychologists had not given any study to the behaviors of juries! In a very real sense we are still only a few steps down the journey that Hutchins sought to set us on almost a century ago.

Perhaps the legal system will never perfectly embody "neutral principles" or "realism" (whatever those terms mean in a vacuum). But if the system aggressively seeks, identifies, and counteracts cognitive bias, then we may be closer to a framework that more accurately reflects society's "true", behind-the-veil preferences about how justice is best served.

Pearson-Iqbal: Responding to Comments

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”.

Pearson-Iqbal: A discussion about discretion

In my last post, I explored a few of the problems with the interaction between Pearson and Iqbal: that a civil rights plaintiff is caught between saying too much (and getting dismissed because of Pearson) or not saying enough (and getting dismissed because of Iqbal); that, as I explained with the example from DiStiso v. Wolcott, this interaction could not only deter plaintiffs from arguing constitutional theories but also from enforcing constitutional rights; and that changing the Rule 8(a)(2) standard has also implicitly modified the substantive inquiry at "Saucier step one", even though the Court did not frame it that way.

I also noted that the increased discretion that courts are given (to decide which step of the QI analysis to undertake first, and to use "common sense") makes it hard to predict how different courts will deal with identical facts. In this post, I want to expand on the problematic way these two cases handle courts' discretion.

Pearson, as discussed earlier, gives courts the discretion to decide which step of the QI analysis to address first. (By the way, in response to Craig's earlier comment -- in FN 131 of the paper, I cite several cases where courts skipped to step two of the QI analysis and note that as of that writing (six months ago), courts had done so "dozens" of times; I suspect the number is higher now.) But while the case law now gives courts wider discretion to dismiss civil rights claims, they have no corresponding discretion to preserve such claims. In the article, I give an example where , at summary judgment, it is a close question whether a reasonable jury might conclude that there was a violation of a (clearly established) right. If a district court dismisses the claim, it will likely be protected by Pearson. But if it decides to let the case go to trial, it will probably have committed reversible error: although trial courts have various inherent powers, qualified immunity is an immunity from suit, not just liability, so the court will probably be held to have exceeded its discretion.

Moreover, litigants will not know which of the two steps a court will address first. Therefore, they will probably argue both. And, in responding to the arguments raised, a court may well address both arguments, even after disposing of the case on one prong or another. (The Tenth Circuit recently did this in a case I cite.) This in turn results in unnecessary dicta, which is the problem with Saucier sequencing that Pearson ostensibly fixes.

Iqbal also disrupts long-standing law regarding lower courts' discretion. As the Second Circuit explained in its Iqbal decision (Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007)), a trial court, “not only may, but ‘must exercise its discretion in a way that protects the substance of the qualified immunity defense.’” Id. at 149. This discussion quoted Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998). Crawford-El explained that district courts have a wide array of tools at their disposal to carefully manage litigation and ensure that defendants -- and particularly government officials -- are not exposed to vexatious discovery and other litigation demands.

As the Supreme Court explained in Crawford-El, a trial court has the power, inter alia, to order a reply to the defendant’s answer per Rule 7 or require a more definite statement of the
plaintiff’s claims per Rule 12. “Thus, the [district] court may insist that the plaintiff put forward specific, nonconclusory factual allegations that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment.” Id. at 598. In Iqbal, the Court instructed that conclusory allegations must be disregarded altogether. Yet in Crawford-El, the Court specifically explained how trial judges were to use their discretion to more fully elaborate on such allegations in the course of testing a plaintiff's complaint. Iqbal makes no mention of Crawford-El, and therefore litigants must assume it is still good law, but there is no reasonable way to square the two decisions.

And this sort of carefully managed discovery process is nothing new. For years, courts have permitted plaintiffs to take limited jurisdictional discovery when there was a question as to whether personal jurisdiction existed in a particular forum. And consider this: Rule 9(b) imposes a heightened pleading requirement in certain cases. But the circuits were uniformly agreed, pre-Iqbal, that Rule 9(b)’s requirements were relaxed when the facts material to a fraud claim were in the defendant’s exclusive possession and could be obtained only through discovery. But it cannot now be the case that Rule 8's general allegations have to meet a higher standard than those that, per Rule 9, must be pled with particularity. Again, Iqbal makes no mention of this problem.

So Iqbal effectively rachets back district courts’ discretion, instructing them to dismiss a complaint outright when a complaint’s well-pleaded factual allegations are deemed implausible. But it also expands district courts’ discretion in another, important direction: it instructs courts to make this decision based on their “judicial experience and common sense." The problem, of course, is that this kind of a determination is so open-ended as to be almost unreviewable.

So this is the second major problem with Pearson-Iqbal: all of the discretion cuts one way. Pearson’s rule that sequencing is now voluntary increases a court’s discretion to dismiss civil
rights claims; Iqbal’s conclusion that discovery management is an inadequate tool decreases a court’s ability to preserve civil rights claims; Iqbal’s directive to rely on common sense increases a court’s ability to dismiss such claims.

Of course, it is possible to devise a rule that would have balanced the interests of civil rights plaintiffs and defendants. For example, the Supreme Court could have (and I submit should have) announced the following rule, consistent with Twombly and pre-Twombly authority: (1) civil rights claims require no heightened pleading standard; (2) if the allegations regarding a particular defendant’s actions are “conclusory,” a court is to determine whether the claims against him are consistent with liability and, if so, whether the facts necessary to support such a claim are likely to be in the defendant’s possession. If so, the court could order limited discovery or use other procedural tools — as described in Crawford-El — to permit the plaintiff an opportunity to determine if he can make out a claim against the defendant. If so, the case would proceed in the normal course; if not, the case would be dismissed. Again, such a formulation preserves the defendant’s interest in avoiding discovery intended only to harass, while permitting the district court to operate with a scalpel rather than a mallet (and a rather one-dimensional mallet at that, since a court’s only option in such a context is dismissal).

We're getting to the end. Because this series has gone on for a while, I'll take a break in my next post and respond to some reader comments. I'll wrap up with a discussion of procedural judicial activism and why we should worry about it.

Pearson-Iqbal: What's the big deal?

In my previous posts (Part I and Part II), I explained why the Supreme Court's recent decisions in Pearson and Iqbal are problematic on their own terms. These are some fairly well-known criticisms. In this part, I want to explain why the interaction between these two cases is problematic -- a point that has not gotten any treatment, to my knowledge, in the academic literature (in print or online).

The biggest problem is that the Pearson-Iqbal interaction threatens to catch litigants -- civil rights plaintiffs in particular -- on the horns of a dilemma. In my article, I illustrate this problem with a case that was recently decided by the District of Connecticut. (The case then went to the Second Circuit, but its disposition there was on grounds unrelated to the issues I discuss here.)

In DiStiso v. Wolcott, 539 F. Supp. 2d 562 (D. Conn. 2008), Robin DiStiso sued various school officials on behalf of Nicholas, her minor son. Robin alleged inter alia that the other students at school harassed, taunted, and assaulted Nicholas because of his race. She further alleged that she complained to Nicholas’s first-grade teacher, Tammy Couture, and the principal, John Cook, and that they did nothing to respond to the complaints. Robin and her husband testified to this effect at their depositions. For their part, Couture and Cook stated in affidavits that they never observed such conduct and never received such complaints from the parents.

At the time of Robin's suit, it was clear that, per Second Circuit case law, a claim like this one -- alleging deliberate indifference to racial harassment -- had to make out at least three elements: (1) harassment by other students; (2) awareness, on the part of school officials, of such harassment; and (3) a “clearly unreasonable" response by those officials. However, it was not clear whether the parents also had to allege (and later demonstrate) a racially hostile educational environment. Years before, the Supreme Court had held that such a showing was necessary in the context of student-on-student sexual harassment. But neither the Supreme Court nor the Second Circuit had so held in the context of racial harassment.

Now we see the Pearson-Iqbal interaction problem. Robin could plead the violation a specific constitutional right: the right to be free from student-on-student racial harassment, premised on a theory of deliberate indifference. But this claim could easily get dismissed: on the basis of Pearson, the District Court could, correctly, hold that (because no court has held whether a hostile educational environment is a necessary element of the claim) the right in question is not "clearly established."

To avoid this problem, Robin could plead the violation of a general constitutional right: the right to be free from racial discrimination. But in this case, Robin and Nicholas would almost certainly lose because of Iqbal. Any allegations regarding intentional, active discrimination by Cook
or Couture would be conclusory, because the real nub of the claim against them (on this count) was not that they did discriminatory things to Nicholas; it was that they willfully ignored others’ discriminatory treatment. In such a context, any allegation that Cook or Couture actively engaged in discriminatory conduct would be seen as “conclusory” as the allegations discarded by the Supreme Court in Iqbal.

And so, in a Pearson-Iqbal world, Robin and Nicholas would be stuck. They could plead the violation of a specific constitutional right -- indeed, the one that is most directly applicable to the fact pattern -- and risk getting tossed by Pearson. Or they could plead the violation of a more general constitutional right, and risk getting thrown out by Iqbal.

There are several important implications:

1) Pearson-Iqbal puts civil rights litigants in a position where their claims, even if they are meritorious, are at risk of dismissal whether they say "too much" (Pearson) or "too little" (Iqbal).

2) The interaction not only threatens the development of novel constitutional theories but also the enforcement of existing constitutional rights. The Second Circuit has held for at least ten years (since Gant v. Wallingford) that schools officials might be liable in this kind of context. But the fact that the applicability of one element has not been squarely decided puts the plaintiffs at risk of immediate dismissal per Pearson.

3) There is no guarantee that the problems I outlined would actually come about (if the DiStisos' case were litigated in post-Pearson/Iqbal world). But this exacerbates the problem. The increased discretion courts have (to use their "common sense" to decide if there was discrimination; to decide how to approach the qualified immunity analysis) makes it that much harder to predict how different courts will rule given identical facts. Such unpredictability undermines the rule of law.

4) When deciding a motion to dismiss on the grounds of qualified immunity, a court had to first decide if the allegations, assumed to be true, make out the violation of a constitutional right (Saucier step one). But as several civil procedure professors pointed out in the Iqbal amicus brief, "what is now described as the first step is, in fact, only a reflection of the plaintiff ’s standard obligation to show her entitlement to relief under Rule 8(a)(2). As a matter of trans-substantive procedural law, a failure to make such a showing in any case would trigger a Rule 12(b)(6) motion to dismiss for failure to state a claim. No different rule applies to constitutional claims . . . ." But by raising the bar for a "regular" Rule 12(b)(6) motion, Iqbal has, perhaps inadvertently, altered the standard for Saucier step one. Now, when faced with a 12(b)(6) motion based on qualified immunity, a court will have to import Iqbal's plausibility standard -- or, if it does not, it will have to explain why plausibility applies in some contexts but not others.

This post has run a bit long, so I'll cut short here. In my next post, I'll elaborate on a point I mentioned in passing above -- the role of lower courts' discretion. Then I'll respond to some of the comments I've received thus far.

Pearson-Iqbal, Part II

In this post I'll continue with an overview of my forthcoming article, Pearson, Iqbal, and Procedural Judicial Activism. In Part I, I explained why the Supreme Court's decision in Pearson v. Callahan was problematic: by permitting courts to skip to the second step of the qualified immunity analysis, Pearson will, over time, reduce the universe of claims available to civil rights plaintiffs.

The story is more straightforward with Ashcroft v. Iqbal. Although that case was, at least on one level, a qualified immunity case, the ultimate disposition turned on pleading standards. Iqbal, a Pakistani national living in the U.S., was picked up by federal authorities shortly after September 11 on certain fraud charges. He alleged that, while in prison, he was abused by low-level guards, at the direction of, and with the knowledge of, high-level government officials. The question the Supreme Court addressed was "whether conclusory allegations that high-level government officials had knowledge of alleged wrongdoing by subordinate officials are sufficient to survive a motion to dismiss in an action brought under Bivens."

The court held that a plaintiff's complaint was to be tested in accordance with a two-step process. First, the court was to disregard all "conclusory" allegations. Second, the court was to determine whether the non-conclusory allegations, assumed to be true, gave rise to a "plausible" entitlement to relief.

This two-step process is fraught with problems. The relevant passage in Iqbal reads, “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [Twombly, 550 U.S.] at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we 'are not bound to accept as true a legal conclusion couched as a factual allegation' (internal quotation marks omitted))."

But this paragraph is sloppy; it equates "conclusory statements" with "legal conclusion[s]", even though these are two different concepts. But certain conclusory statements, even under a properly-applied Iqbal standard, are entitled to the assumption of truth. For example, the statement that "X was walking down the street," though conclusory -- it provides no facts to suggest that X actually was walking down the street -- is entitled to the assumption of truth. "X was negligent," on the other hand, is not. Of course, the two statements are equally "conclusory"; the former is a factual conclusion and the latter is a legal conclusion.

So perhaps Iqbal meant to say that legal conclusions are not assumed to be true? But this cannot be: as Justice Souter wrote in his dissent, there are factual conclusions that are also not entitled to the assumption of truth: "that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel." And the majority's did not limit its plausibility standard this (or any) way. Instead, a court is to rely on its “judicial experience and common sense” in determining whether a claim is plausible, after disregarding “conclusory” allegations. Thus, in its attempt to discard improperly pled (factual? legal?) allegations, a court must necessarily draw on its own views as to what the facts are, or should be.

Iqbal also elevates form over substance. "X discriminated against me because of my race" is conclusory and would be disregarded. But "X discriminated against me; I am an Arab Muslim; non-Arab, non-Muslims were not discriminated against" probably would pass muster, even under Iqbal. But the second formulation adds nothing, as a practical matter, to the first.

There are a variety of other criticisms of Iqbal that I summarize briefly in my article. My only point here is to highlight the fact that Iqbal does not even necessarily hold water on its own terms. (Professor Arthur Miller, in Congressional testimony, has expounded some other criticisms, including the idea that Iqbal is the culmination of a line of cases steadily eroding our commitment to civil litigants' day in court.) I do not intend to be exhaustive here about all of these criticisms. I just want to point out that, by raising pleading standards, Iqbal raises the bar on plaintiffs, making it harder for civil plaintiffs to prevail on their claims.

In my next post(s), I will explain how the interaction between Pearson and Iqbal harms civil rights plaintiffs, and how this exemplifies what I call "procedural judicial activism." I'll also respond to the comments -- look forward to hearing more.

Pearson, Iqbal and Procedural Judicial Activism

Thanks again to the staff at Blackbook and the commenters for the welcome.

I want to start off by summarizing, in a few parts, my latest article, Pearson, Iqbal, and Procedural Judicial Activism. The paper takes aim at two cases the Supreme Court recently decided -- Pearson v. Callahan and Ashcroft v. Iqbal -- and concludes that the cases are problematic, not just on their own terms but also in terms of their potential interaction.

Pearson was a qualified immunity case. By way of background, qualified immunity is a doctrine that generally shields government officials from liability for their actions. In a nutshell, the rule that the Supreme Court formulated, which found its most famous expression in 2001's Saucier v. Katz, was this: a state official would not be liable unless his actions (1) violated a constitutional right and (2) that right was "clearly established" at the time of the relevant conduct. These two questions were to be addressed in sequence. As the Court explained, "This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry."

To see how this works in practice, consider the Court's recent decision in Safford v. Redding. Savana Redding was strip searched at school and subsequently sued, claiming that the search violated her constitutional rights. The Court held (at step one) that the search did in fact violate Redding's rights. But it went on to hold (at step two) that the right was not "clearly established" at the time of the search. Note the salutory effect of this sequencing: in the future, school officials will know the permissible limits of a search, and students will have a clearer understanding of their rights.

In Pearson v. Callahan, the Supreme Court made Saucier's sequencing optional. Now, courts are free to skip ahead to step two and grant an official immunity based on the fact that the asserted right was not clearly established. Note the problem: if a court skips to step two on the basis that the right in question was not clear, then the court does not pass on the nature of the right at issue. That means that, the next time a similar case comes up, the relevant right still has not been clearly established. Over time, the "voluntary sequencing" regime will have a detrimental effect. Courts will never need to address the constitutional question, the right will never become established, and the universe of claims available to civil rights plaintiffs is smaller than it otherwise would be. (Obviously, in some cases -- like Redding, which was post-Pearson -- a court will pass on the first question by choice; it is not inevitable that all cases get kicked out by a court moving directly to step two. But these will generally be the exception.)

This is why Perason is problematic on its own terms: by permitting courts to bypass the first step of the immunity analysis, it will limit the range of claims that civil rights plaintiffs can bring.

In my next post, I'll summarize the problems with Iqbal, and in a third, I'll explain how the interaction between these cases harms civil rights plaintiffs. The article is still forthcoming, so if anyone has comments, I'd love to hear them and, to the extent feasible, will work them into future drafts.

How Low Can the Pleadings Standard Go?

Recent legislation seeks to overturn the infamous Bell Atlantic v. Twombly and Ashcroft v. Iqbal cases responsible for holding plaintiffs to a higher pleadings standard. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Before Twombly, FRCP Rule 8 laid out a notice pleading standard which required a short and plain statement of the claim showing that the pleader is entitled to relief in order to give defendants fair notice. At the initial pleadings stage, the plaintiff had the burden of making factual allegations that, if true, stated a cause of action on which relief could be granted. Although the allegations needed to satisfy all elements of the claim, no evidence was required.

However, in Twombly, the Supreme Court created a plausibility standard establishing that a pleading must contain something more than a statement of facts that merely create a suspicion of a legally cognizable right of action. Revisiting Twombly in Iqbal, the Court rejected the theory that the heightened standard applied only to antitrust conspiracies, claiming that “Twombly expounded the pleading standard for ‘all civil actions.’” 129 S.Ct. at 1955. Supporters of these decisions believe that the heightened standard will reduce the amount of frivolous claims and avoid cases in which discovery is unlikely to reveal relevant evidence.

Well, Senator Arlen Specter begs to differ. Proposing the Notice Pleading Restoration Act, he is joined by several other officials in arguing that a higher pleadings standard simply favors defendants who succeed in concealing evidence, especially large corporations. As a result, courts are more likely to wrongly dismiss cases.

In certain respects, I do agree that the standard may be too high. First, it seems unfair to say that a meritorious case is always factually supported from the beginning. For instance, the plausibility standard is likely to be invoked is discrimination cases where the defendants will succeed on the basis of pure information asymmetry. Sometimes, the information necessary to meet the standard is in the hands of the defendants, and plaintiffs get caught in the catch 22 of needing discovery documents to solidify their claim while being stopped short of actually engaging in discovery. Also, I think that courts are able to impose certain limits on the discovery process to avoid the idea that it merely becomes a fishing expedition amounting to a waste of time and money. However, I think the major attack comes from the idea that lawyers, judges, plaintiffs and defendants alike have absolutely no idea what a plausibility standard actually entails. As a result, the Iqbal decision seems to imply that judges are left to decide right from the start whether the plaintiff is likely to have a meritorious claim, and without enough information, this decision can be construed as rather arbitrary.

I will say that, in reading about this new legislation, I was intrigued by the vast number of Twombly supporters who truly believe that the heightened standard will promote worthy claims, save resources, and encourage settlements. I know that I am instinctively uncomfortable with both Twombly and Iqbal, but I am open to being persuaded otherwise.