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Eight Months of Iqbal: Part 3

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2 Responses

  1. Howard Wasserman says:

    Something interesting about the 7th Circuit: It had insisted, both before and after Twombly, that “I was fired from my job with defendant because of my race” was sufficient. I doubt that pleading passes muster today.

  2. TJ says:

    Adam, to take up our conversation from the other thread, I don’t disagree with you that Twombly and Iqbal are reconcilable with preexisting law (I think I am one of the few who believe this). But a few thoughts:

    1. You say that my detail and specific allegation that President Obama ordered my alien abduction would not fail the literal language of Iqbal. But as we teach students, the content of a legal rule is in the application. What exactly is “conclusory” about the allegation in Twombly, that defendants “agreed” to fix prices? Was it that the complaint didn’t specify the time and place of the smoke-filled room in which this agreement occurred? One strongly suspects that this deficiency is not what the Justices were concerned about, no matter what they literally say in the opinion.

    2. The point, rather, is that both before and after Iqbal, my complaint that President Obama ordered my alien abduction would be dismissed. And there is no other explanation than that, before Iqbal, there was an implied “plausibility” requirement, whatever Conley might have said about it. As you point out, some of the proposals being floated now want to tie plausibility to the standard for judicial notice. But other proposals (especially the ones in Congress) simply want to get rid of plausiblity altogether.

    3. Following from that, I think that prior to Twombly and Iqbal, the requirements of “non-conclusory” and “plausible” were both implicit in Rule 8; and in that sense I agree with you that Iqbal is not irreconcilable with prior doctrine. It is just that, as you say, there was very limited understanding of what “conclusory” meant, and so too with “plausibility.” Before Iqbal, “Defendant negligently crashed his car into mine” was not conclusory, now it might be. Before Iqbal, “President Obama was really born in Indonesia and faked his birth certificate” probably could not be dismissed for lack of plausibility, now it probably can. The difference is one of degree, not of kind; but I think it is hard to deny there is a difference. And virtually every major legal change can be thought of as one in degree only, by playing off the linguistic gaps in prior opinions.