Legal Commentary

I am fortunate enough to have a shmackage (Civ Pro, Fed Courts, Civil Rights, Evidence) that is precisely what I was looking for when I went on the market, coherent (although some contest the presence of Evidence) and overlapping, and tied to at least a portion of my scholarly agenda. The nice thing about such a combination is that you occasionally see a case that brings all these subjects together. Enter Ashcroft v. Iqbal, argued before SCOTUS last week, on whether highest-level federal officials, such as the Attorney General and the Director of the FBI, can be sued for damages for the post-9/11 round-up and detention policies that were carried out in a discriminatory way by lower-level officials.

The oral argument (summary and summary) was a walking Civ Pro/Fed Courts/Civil Rights syllabus.

Civ Pro, Pleading: The primary focus of the argument was on the sufficiency of the complaint. This focused much of the argument on figuring out just what the pleading standards are after Bell Atlantic v. Twombly, whether there is or should be heightened pleading in some types of cases, what "plausibility" means, how detailed allegations must be, and whether the plaintiff must identify the evidentiary basis for facts at the pleading stage. The justices' lack of understanding of, and dislike for, the historical purposes of notice pleading was palpable. There was some discussion of how some allegations were contested by government counsel and how that affects the analysis of the sufficiency of the complaint (correct answer: It doesn't, since facts should be taken as true). At one point, Justice Breyer even admitted not remembering certain things about civ pro that must have been on "day four" of his class, way back when. I have a feeling the Court may do more tinkering with pleading standards, at least in some civil rights cases where busy high-level officials are involved.

Civ Pro, Discovery: Several justices expressed concern for untrammeled discovery and the need to use pleading to limit discovery, which was the main theme of the government's argument. Especially when dealing with highest-level executive-branch officials. This is why there was so much discussion of the president of Coca-Cola, a similarly busy official, implicated in individual wrongdoing. Justice Stevens got in a nice dig and a laugh at the government's too-busy-to-be-deposed argument, noting it was not an issue when he wrote Jones v. Clinton. But clearly the Court, as it did in Bell Atlantic, is on the warpath over discovery and looking to use the pleading rules as a way to limit discovery.

Civ Pro, Judicial Discretion: The bad guys in much of this conversation are the district court judges who oversee and control discovery and who, in the mind of many on SCOTUS, simply cannot be trusted to wisely wield the discretion that the Federal Rules vest in them. There were many comments from the bench about the power of a "single district court judge" over discovery and how the single judge was making a discretionary interlocutory (i.e., effectively unreviewable) order. Some of these comments were reflective of the concerns many 1Ls have that "judging" really gets done only at the appellate and SCOTUS levels and that there is something wrong with vesting the trial judge with discretion and no immediate review. The oft-noted fact that none of the justices had much trial experience, from the bar or the bench, was telling.

Civ Pro, Affirmative Defenses: The government officials' qualified immunity defense was rejected by the district court and not appealed. The officials spent much of the argument trying to squeeze the qualified immunity defense into the pleading requirements--essentially arguing that more was required in the complaint for it to state a claim because of the defense of qualified immunity. This, of course, conflates elements with affirmative defenses, qualified immunity falling in the latter category.

Civil Rights, Qualified Immunity: The immunity defense underlay much of this argument. Most of the Justices seemed to be looking for a way to get high-level officials out of cases, even if qualified immunity was not directly presented here.

Civil Rights/Fed Courts, Bivens: Although not presented directly, one way for the Court to get out of this mess is to find that these Bivens claims against high-level policymakers are not cogizable because the post-9/11 crisis environment out of which the claims arise and these officials' busy schedules constitute "special factors counseling hesitation" to be balanced by a court, common law style, against recognizing the Bivens claim. I am not advocating this position, which I think has some real problems (such as leaving plaintiffs without any remedy against these officials). But I think this path would do less overall damage than the Court rewriting FRCP 8 and 9(b), as it seems inclined to do.

I am thinking of assigning this argument to show the confused current state of pleading law. It would be far more interesting than reading yet another case. I just wonder if it is too bound up with Bivens and § 1983 to be comprehensible to them.