Legal Research

The Supreme Court has changed the rules in the game of federal civil litigation, according to Justice Ginsburg.  From merely requiring a "short and plain statement of the claim" Fed. R. Civ. P. 8(a)(2), the court in Ashcroft v. Iqbal moved to a standard of requiring that the plaintiff plead sufficient factual matter to state a claim for relief "plausible on its face." 

As the New York Times points out, this leaves plaintiffs who are "victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention" at a loss, because the details about the alleged wrong are usually secret.  Discovery, which follows on the heels of the complaint, enables such plaintiffs to uncover the facts.  Since the process of discovery can be extremely costly for the defendant, this gives the plaintiff settlement leverage.  The new dispensation, which allows judges to rely upon a perceived lack of "common sense" and plausibility in dismissing the claim, is clearly subjective.  If a judge does not favor particular causes of action, the new standard provides no principled check on the judge's ability to dismiss such claims as soon as they are filed.  In the past two months, 500 courts have cited to Ashcroft.