On Wednesday, the Judiciary Committee of the U.S. House of Representatives held a hearing called “Access to Justice Denied — Ashcroft v. Iqbal,” on the outsize effect the U.S. Supreme Court’s May 2009 ruling has had on civil litigation. The ruling, you’ll recall, requires plaintiffs to plead specific factual allegations in their complaints. It has already been cited in almost 3,000 lower court rulings in just five months on the books. (Check here, here and here for our previous coverage of complaints dismissed on Iqbal grounds.)
Given the title of the Judiciary Committee’s hearing, it’s no shocker that three of the four witnesses who provided written testimony said the pleading standard the Court established in Iqbal is too high. Arthur Miller of the New York University School of Law, John Vail of the Center for Constitutional Law, and Debo Adegbile of the NAACP Legal Defense and Educational Fund all testified that Iqbal and the predecessor Supreme Court decision it expanded, Twombly, had reset judicial expectations, requiring too much of plaintiffs at the earliest stages of litigation. “A person is now barred even from entering the courthouse,” Vail said in written testimony, “absent being able to drum up facts that convince a federal judge — someone who breathes fairly rarified air — that her claim is subjectively ” p=”" href=”http://judiciary.house.gov/hearings/hear_091027_1.html”>only one witness, former Justice Department Civil Division Assistant AG Gregory Katsas, who will rejoin Jones Day as a partner in November, defended the ruling as “ consistent with the vast bulk of prior precedent.” Moreover, he warned, overturning Iqbal through the sort of legislative rollback action suggested by Senator Arlen Specter would “open the floodgates” to “intrusive and expensive discovery into implausible and insubstantial claims.”
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