Legal Commentary

A new voice in the debate over legislation to overrule Iqbal and Twombly is the Alliance Defense Fund, an organization of "Christian attorneys and like-minded organizations" that litigates "civil rights cases in defense of religious freedom, the right to life, and the natural family." (H/T: One of my civ pro students and the Civ Pro/Fed Courts Prof Blog, which links to an NLJ piece on the ADF letter). ADF claims to be uniquely situated in talking about this issue because, unlike many civil rights organizations, it litigates both sides of civil rights claims, often representing corporate defendants (presumably in Title VII claims involving religion in the workplace) or intervenor-defendants where government is not sufficiently vigorous in its defense (as ADF is now doing in the Prop 8 lawsuit in California).

I am particularly interested in Iqbal/Twombly for its negative effects on civil rights litigation and civil rights plaintiffs, a uniquely vulnerable group to any ratcheting up of the pleading requirements. Coverage and discussion of ADF's position has adopted a "strange bedfellows" meme--"Wow, a conservative religious organization agreeing with congressional Democrats and groups such as the ACLU and supporting the return of Conley (or something)."

This is a good reminder that conservative/liberal labels do not work when talking about something like civil rights or civil liberties. Civil rights is a broad, non-monolithic field; the term could mean a lot of things. There are some issues in which, arguably, civil rights/liberties are in play on both sides of an issue. It is unfortunate that the term has taken on a politically one-sided meaning that is not necessarily true or accurate. (I would argue the same is true of the term "public interest," which is associated only with liberal causes and does not recognize that one can work for conservative causes and still work in the "public interest"--I have tried to argue against this partisan or ideological reading of the term, usually in faculty meetings and always unsuccessfully).

ADF and ACLU are not incompatible on this issue, thus the "strange bedfellows" theme is unfortunate. In fact, I would have fully expected these groups to agree that Iqbal is a problem and needs to be changed. Both are engaged in the same enterprise--litigating civil rights/civil liberties issues--and both must deal with Iqbal/Twombly and the burdens it imposes. Both must deal with its vagueness and the increased inferential power/discretion it gives district court judges. Both must deal with the information assymetries that make Iqbal a serious hurdle. Both must deal with the increased likelihood of dismissal of claims. The only reason they might disagree is not political ideology, but litigation position--given that ADF sometimes defends. In that sense, I am surprised we have not (yet) heard from other "conservative" groups that litigate constitutional/civil rights/civil liberties issues on the plaintiff side, such as the NRA or Pacific Legal Defense Fund or Chamber of Commerce.

Hey, maybe procedure can, at times, be politically neutral after all.