"I have spent my whole life with the federal rules, and this is one of the biggest deals I have ever seen," said New York University School of Law professor Arthur Miller, a longtime expert on civil procedure. "Me, old fogy troglodyte that I am, I see serious problems with democratic values here, with access to the courts, with resolution of disputes with a jury of peers."
Brooklyn Law School professor Elizabeth Schneider, who has written extensively on federal civil procedure, said Iqbal is forcing trial judges to go "line by line" through pleadings, using subjective factors to decide what parts are factual and which statements are conclusory. "If that's not an open door to judicial bias, I don't know what is," she said.
Michael Carvin, a partner in the Washington office of Jones Day and a frequent litigator on behalf of companies, countered that Iqbal has been "very beneficial" in "slowing the major abuse of litigation against corporations." He said, "You can't just throw mud against the wall. You have to have some theory of the case." Under the previous rule, companies contend, plaintiffs would state frivolous claims in hopes that companies would settle rather than face expensive discovery.
The main target for those seeking to roll back Iqbal is Congress. Sen. Arlen Specter, D-Pa., introduced a bill in July that would return pleading standards to the pre-Twombly status. A similar House bill may be introduced this week. To turn an esoteric issue like pleading standards into a popular cause, the groups that met last week may seek out individual litigants who can testify about how the Iqbal standard affected their lawsuits."Though the issue may seem dry, we've already seen that Americans are being kept out of the courtroom as a result of Iqbal ... so passage of this legislation is critically important," said Nan Aron of the Alliance for Justice.
REVISING THE RULES
Another strategy under debate is to seek changes in the Federal Rules of Civil Procedure regarding pleadings (Rule 8) and dismissals (Rule 12). Some critics say the Supreme Court, by deciding Iqbal as it did, in effect amended the rules without going through the rulemaking process. Rule 8, for example, calls for a "short and plain statement" of the plaintiff's claim in initial pleadings. At the 2nd Circuit's judicial conference this summer, Justice Ruth Bader Ginsburg, who dissented in Iqbal, said that in her view the Court had "messed up the federal rules."
But altering the federal rules is a lengthy process, noted University of Pennsylvania Law School professor Stephen Burbank, a strong critic of Iqbal. He also cautioned, "The process is under the control of the Supreme Court, which is responsible for these atrocities." Chief Justice John Roberts Jr., who was in the 5-4 majority in Iqbal, appoints members of Judicial Conference committees.
U.S. District Judge Mark Kravitz of Connecticut, who chairs the influential Judicial Conference Advisory Committee on Civil Rules, said his committee is monitoring the impact of Iqbal and Twombly with an eye toward gathering data and discussing later this year whether rule changes are needed. "We ought to be deliberate about it," Kravitz said in his first comments to the press about the Iqbal issue. So far, he told The National Law Journal, his sense is that judges are "taking a fairly nuanced view of Iqbal" and that it is not yet "a blockbuster that gets rid of any case that is filed."
Indeed, not all judges are rubber-stamping Iqbal motions. During a hearing Aug. 10 in an employment discrimination case, Senior Judge Milton Shadur of the U.S. District Court for the Northern District of Illinois told defense lawyers that Iqbal and Twombly "don't operate as a kind of universal 'get out of jail free' card."
Even the Iqbal case itself is not entirely over despite the Supreme Court's decision. Javaid Iqbal, a Pakistani Muslim detained in the United States after the Sept. 11, 2001, attacks, is trying to hold then-Attorney General John Ashcroft and others personally liable for constitutional violations. The Court ruled that Iqbal's pleadings -- such as his claim that Ashcroft was the "principal architect" of his detention -- were conclusory and insufficient to justify proceeding. The Court sent the case back to the 2nd Circuit, leaving open the possibility that Iqbal could amend his pleadings.
Since then, Iqbal's lawyer, Alex Reinert, said he has been in settlement talks with the government. But if the case is not settled, Reinert said he plans to amend the pleadings to include facts that the Court said were missing -- facts he obtained during a period of discovery before the high court ruled.
"We think we can meet the new standard," said Reinert, who teaches at Yeshiva University Benjamin N. Cardozo School of Law. "We absolutely still could win."