Penn Statim

THE LAW REVIEW GAMES
117 Penn St. L. Rev. Penn Statim 1. Published Dec. 12, 2012. View as PDF.
By: Miriam A. Cherry* & Paul M. Secunda**

Prologue
***

Assistant Professor Katniss Everdeen’s stomach rumbled loudly.  Another skipped meal, because who had time to eat when working on yet another law review article?  Her work had consumed almost a year of her effort and vitality.  But despite the gnawing hunger pains, Katniss had to keep working, honing, crafting, and polishing the writing of her article.  There was not even time to go poaching with fellow faculty member, Gale, or to engage in puppy-love histrionics with another faculty member, Peeta.  Since the great recession had started, resources were scarce in District Twelve.  Electricity only came to law school buildings erratically, so she had to work on the article in the few stolen moments of electricity that she could obtain.

On the weekend, Katniss would duck under the fence beneath the elevated train track that some of the wealthy faculty members at a nearby top-ranked school used to ride back and forth to their homes.  Sometimes, when she was down there, under the fence poaching electricity and hacking into the Westlaw grid, Katniss felt her spirit soar.  She appreciated the company of her colleague Gale, who would sometimes hack into the Westlaw grid too.  Sometimes, while they were hunkered underneath the tracks, a faculty member from a higher ranked school in the area would toss out a crust of bread from the high window of the train.  The bread tasted bitter to Katniss, but with two hungry mouths to feed at home (her niece Petunia and their miniature daschund), she and Gale always found themselves silently accepting the bread.

“You Will Submit”
***

Life went on, with intermittent brownouts and other daily humiliating reminders of the twelfth tier status of her district.  One day, in late February, the Great Bird Redyip of Zarcon announced on his Twitter feed that he was ready to take off for the mountains.  While Katniss had long followed the mythology of Redyip, she had no hope of attracting the Great Bird’s attention.  Instead, she realized that she would have to submit her article the “Old Fashioned Way”—through ExpressO.  One male and female Tribute from each district would be selected randomly and have their plight during the submission process televised live on TV for the entertainment of the established law faculty members at the prestigious schools in the Capitol.  Those that were eliminated from the law review selection process would know that their careers would rapidly circle the drain.  It was a high pressure situation for Katniss, who was informed that she had been selected as one of the Tributes for District Twelve, along with Peeta, a clinician who was writing up the findings of an empirical study that he was using to track the outcomes of his clients.  Gale promised to take good care of Petunia and her daschund for Katniss as she departed to play the Law Review Games in the Capitol.  She could only pray that the odds would be in her favor.

“The Games Begin”
***

With only two days left to submit the article, Katniss talked with Haymitch Abernathy, a faculty colleague who loved to talk about his former glory days.  While Haymitch had not submitted an article in the past fifteen years, he did love to give advice, mostly based on a placement he had gotten through a friend at an Ivy League School.  “Make sure your article is very long with at least 400 footnotes,” Haymitch said.  “You will want the editors to know just how long that you spent on it.  Plus, it can serve as your tenure piece.  You still only need one piece for tenure, right?”

Katniss was not sure that this was particularly good advice anymore.  Didn’t the journals want shorter articles these days (at least for those who did not have the cachet to write the normal 100-page magnus opus)?  But Haymitch was supposed to be her mentor, even if he did hit the bottle pretty hard.  Both she and Peeta added about another five pages to their articles, and another fifty footnotes, and turned the articles over to Cinna, their research dean, who helped them with the styling of their cover letters and the titles of the papers.  Interestingly, Cinna told Katniss that the shorter the title of the article the better.  Katniss was told to title her paper “Girl on Fire,” which, of course, had nothing to do with the topic of her paper.  Peeta and Katniss both submitted via ExpressO and journeyed to the small room in the Capitol where they would live and be taped on camera while they waited for their results.  Across the land, Tributes from other districts were also being sent to the same small room where they would see who would win “The Law Review Games.”  At stake, perhaps tenure or promotion, or perhaps a one-way ticket to one of those more prestigious schools.

“Death by A Thousand Cuts”
***

Four hours after sending her article (which was about the legal and ethical ramifications of energy “redistribution,” or as the citizens of the district liked to call it, “poaching”), Katniss received her first e-mail rejection, from the Top Rated Law Review.  Clearly, the students on that review had taken the time to read her cover letter, her CV, and, of course, her entire article, right?  Or, they could have seen she was from crummy District Twelve and rejected her on the spot as beneath their hallowed institution.  Katniss knew that such journals tended to rely on proxies, such as where the professor taught, what previous articles placements the Tributes had, and whether they had friends at the law school willing to “walk the piece down” to the Journal offices.  Katniss had none of these and wondered how anyone from District Twelve ever got a law journal offer anywhere.

Only a few hours later, Peeta had received rejection emails from two of the other top schools.  The letters told him what a pleasure it had been to read his article, that his was a fine and worthy article, but that the journal had 3,000 submissions this year, and there was no way they were going to publish a nobody from District Twelve.

Had the editors even read their submissions?  Katniss doubted it.  But the camera caught all of their reactions of despair, frustration, and indignation.  Who were these 2L and 3L punks anyway?  What did they know about the subject on which Katniss was considered (at least in her own mind) an expert?  Katniss comforted herself with the knowledge that these same law review editors would be going to the Law Firm Games, where they would surely die a gruesome death of unlimited billable hours and partner ass-kissing.

As the days wore on, Katniss and Peeta received even more rejections.  Although all the emails they received in the end rejected them, it was kind of interesting to see the number of ways one could be rejected.  Their television ratings soared, since both of them seemed to take the rejections to heart and wore their emotions of their sleeves.  On more than one occasion, Katniss broke up into uncontrollable sobs and screamed, “Curse you all!  I am better than all of you!”  Peeta was embarrassed by these outbursts.  He just took to cutting himself to endure the pain.

The other Tributes, from Districts One through Four, seemed to blame the system of law reviews, in which 2L and 3L editors joined a crazy scrum to attempt to read hundreds of articles in only a three-week period.  Instead of blaming themselves, the Tributes from these wealthier districts blamed the system, noting that it was “crazy” to put their submissions into the hands of law students and not even make the reviews anonymous.  The professors from the Capitol would only submit to the top ten journals, since they were armed to the teeth with their fancy letterhead (and even more outlandish clothing and cosmetics).  Moreover, they took comfort in the thought that if none of the other law journals would take their latest pieces, their own school would accept it.  Top law journals were known to accept less than great pieces from their own professors.  Of course, if Katniss or Peeta followed this tact, they would end up in a low-ranked law journal from District Twelve and decrease their chances of ever escaping.

In fact, only Katniss, Peeta, Rue, and a few other Tributes from Districts Seven through Twelve blamed themselves and gave the audience the desperate, anxious reactions that they so wanted.  As a matter of reality, it was left to Katniss and Peeta to submit their articles widely and hope and pray that they would receive offers from a District One through Four law review.  The audience was going wild with their grief and fear, as well as the growing love story between Katniss and Peeta.  Somehow, being rejected by the law reviews only made Katniss and Peeta engage in banal dialogue fairly typical of people their age.

It was a sad day when Rue’s expedite deadline expired, and she was stuck with an Eighth Tier Placement.  That night, the skies of the Capitol lit up with a projected image of Rue.  Katniss cried and insisted upon covering Rue with flowers, much to Rue’s chagrin.  This only served to make Katniss more popular.

Because she was so popular, fans of Katniss purchased help.  The producers parachuted in an offer from a midlevel school from District Five, on the west coast, and waited to see how that would make Peeta react.  Would it bring out fear of rejection?  Jealousy?  How would Katniss handle the expedite process?  Would she have a mental breakdown?  The audience was on the edge of their seats!

Meanwhile, emails kept rolling in for both Katniss and Peeta.  Gems like:  “Although our editors did enjoy your article, it simply was not what we are presently seeking to place in our upcoming issues.  I realize this is probably an insufficient answer, but we typically do not discuss our article selection criteria with authors and hope you can respect our current policy.  Again, thank you for your interest.”

Or, a rejection that came in response to Katniss’ expedite, with the subject line “Status Article.”  Although Katniss knew this was probably just a mistake, and the editors had meant to write “Article Status.”  She humored herself by thinking that, perhaps, the editors had thought well of her article.  Gallows humor, but at least it was humor.

Then, there were those journals that decided that it would be perverse fun to drive the knife of agony further into Katniss’ heart by telling her that her article had been selected for “final round review.”  When Katniss asked the law review editors what this meant, she was told mysteriously, “3/4 of the editorial board must vote to make you an offer.”  Other boards said that they required a 100% vote from the editorial board.  Still, others called Katniss on the phone and told her that they were actively considering her article and that she should let them know if the status of her article changed.  At one point, Katniss finally thought she had broken through because one of these law reviews where she made final round review called her back by phone.  Katniss was sure this was it.  The editor on the phone said, “We loved your article.  Unfortunately, Professor Cato from District Two wrote a piece as well and, as you know, he is much better known than you are.  We have decided to take his piece instead of yours.  Sorry.”  The cameras panned in as the uncontrollable tears left Katniss’ eyes.  Peeta tried to make a funny joke of it all.  Katniss slugged him.

“Happier Days”
***

Even after the punch to the gut, instead of fighting, or getting jealous, Peeta’s true colors shone through.  He helped stabilize Katniss through the fragile period.  He even gave her a loaf of bread, which no one quite understood.  While the law review editors kept trying to turn them against each other, their tricks only helped Peeta and Katniss grow closer.  Yet, they never did anything more than kiss.  And they certainly never had sex.  (Even given all the gruesome violence done to our protagonists, this is still a children’s book after all!)

One day, while Katniss lay listlessly in Peeta’s equally listless arms, word came that Katniss had been made an offer of publication at Almost Top Law School Law Journal (ATLSLJ).  Katniss was delirious with delight, and Peeta pretended to be happy for her.  (Peeta wondered secretly why clinicians could never get a fair shake in this process and why doctrinal faculty always had to talk down to them, but whatever).

Katniss’ delight, however, turned to be more pain as she attempted to again go through the expedite process.  Like the Muttations from another dystopian Games, the expedite process was at once familiar and yet all the more horrifying and unsettling.  Having secured an offer from ATLSLJ, and being given a week to find a better offer, Katniss sent emails to the schools who had not rejected her yet, about twenty schools.  A number of better ranked schools wrote back immediately with promising promises to evaluate her article with new scrutiny now that she was in the much sought after “expedite pile.”  Other schools continued to ignore her and, to be frank, still did not even know that she existed.

With one expedite prospect, she was told that the article was being submitted to final review.  Of course, she did not get the offer from this journal.  And the whole cycle of anger, denial, helplessness, and acceptance started all over again.  During this time Peeta, proposed to her on national television.  Katniss told him to “Piss off.”

Epilogue

Eventually, having exhausted all the expedite possibilities, Peeta and Katniss returned from the little room in the Capitol to District Twelve, Katniss feeling OK with her offer at ATLSLJ and Peeta having secured a placement at yet another clinically-oriented law review.  Not quite proud or victorious, Katniss and Peeta had done much better than most other Tributes from similar districts, and, of course, they had found each other.

What will happen next year when Peeta and Katniss submit their jointly-authored article?  Will it be too much for them to write together?  Will their promotion and tenure committee discount it completely because it was co-authored?  And who is that blogger behind the Law School Scam anyway?

You will need to read the second installment of “The Law Review Games” to find out.

Preferred Citation:  Miriam A. Cherry & Paul M. Secunda, The Law Review Games, 117 Penn St. L. Rev. Penn Statim 1 (2012), available at http://www.pennstatelawreview.org/penn-statim/117-penn-st-l-rev-penn-statim-1/.

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Preferred Citation: Hon. T.S. Ellis, III and Nitin Shah, Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach, 114 Penn St. L. Rev. Penn Statim 64 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 64.pdf.

Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach
114 Penn St. L. Rev. Penn Statim 64. Published August 8, 2010. View as PDF.
By Hon. T.S. Ellis, III and Nitin Shah.

The Supreme Court’s opinions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have triggered a lively and heated debate over the federal threshold pleading standard. This debate is far from new. Distilled to its essence, the fundamental issue presented by this debate—the ease with which a claimant may nudge open the doors of a federal court—is the same issue that has been debated since well before the adoption of the Federal Rules of Civil Procedure. And we think it is safe to say that this issue will continue to be debated long after the dust settles on the current eruption.

As is typical of many policy debates, the debate over the merits and demerits of Iqbal and Twombly has been characterized by almost as much heat as light. Opponents of the decisions contend the decisions have the effect of closing federal courthouse doors to claimants with meritorious claims; they decry this assault on fair access to the courts. No less dramatic is proponents’ contention that the decisions are a necessary safeguard against an onslaught of frivolous claims cooked up by plaintiffs’ lawyers to pry open courthouse doors so they can use discovery as a weapon to extort settlements. Both sides’ contentions do little to advance the debate. No one disagrees with the contention that there should be fair access to the courts and that claimants with meritorious claims should not be denied this access. Similarly, no one denies that there should be proper safeguards to prevent claimants from using meritless claims merely to arm themselves with the weapons of discovery. These two contentions do not advance the debate for they assume the questions at issue, namely whether Iqbal and Twombly, contrary to their authors’ intent, have resulted in closing courthouse doors to meritorious claims or whether those opinions, consistent with their authors’ intent, have served to shut courthouse doors only to meritless claims asserted in the hope of coercing a settlement.

This Essay’s very modest objective is to move the debate toward a source of light (rather than heat) by focusing on the following questions:

1. What, if anything, has changed in the nature and volume of litigation to warrant the move from the pleading standard enunciated in Conley v. Gibson to the one prescribed by Iqbal and Twombly?

2. What, if any, are the effects of Iqbal and Twombly?

3. Should Iqbal and Twombly be modified or changed—and if so, how?

These questions are an easily recognizable application of the sensible principle that one needs to know where one has been and where one is now before one can decide in which direction to head in the future. And the limited purpose of this Essay is to suggest that we cannot answer the third question with any confidence unless we have a reasonably accurate understanding of the answer to the first question and unless we have valid empirical data pertinent to the second question.[keep reading]

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By Michael Moffitt . 114 Penn St. L. Rev. Penn Statim 51.
Published July 26, 2010. View as PDF.

Preferred Citation: Michael Moffitt, Iqbal and Settlement, 114 Penn St. L. Rev. Penn Statim 51 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 51.pdf.

Iqbal and Settlement
By Michael Moffitt

The Supreme Court’s decision in Iqbal was good news for defendants. By increasing the scrutiny with which a plaintiff’s complaint is to be examined, the “plausibility” standard articulated by the Court makes motions to dismiss a more potent tool.

A nearly implausible amount of scholarly ink has already been spilled in an endeavor to answer descriptive, predictive, and normative questions about Iqbal. What does the plausibility standard really mean? How much of a change does this represent? Who will be most affected? And are those changes wonderful, awful, or something else? The sky either is or is not falling on some or all of us, according to Iqbal analysts.

Much of what has been written about Iqbal has been written from the perspective of litigation, and that is perfectly sensible. After all, Iqbal is a decision about Federal Rule of Civil Procedure 8, at its heart. Questions of access to the court and defenses like immunity are bread and butter Civil Procedure topics. Of course many of those who have commented on the case do so from a litigation perspective.

As Nancy Welsh suggests, however, the realities of modern litigation present another frame through which to assess Iqbal—that of settlement dynamics. My question is not whether Iqbal will have this or that effect on litigation. My question is whether Iqbal will create a change in disputants’ conversations about settlement. [keep reading]

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By Angelique EagleWoman. 114 Penn St. L. Rev. Penn Statim 41.
Published July 9, 2010. View as PDF.

Preferred Citation: Angelique EagleWoman, A Constitutional Crisis When the U.S. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards, 114 Penn St. L. Rev. Penn Statim 41 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 41.pdf.

A Constitutional Crisis When the U.S. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards
By Angelique EagleWoman (Wambdi A. WasteWin)

The United States Supreme Court is one of the three branches of federal government in the U.S. governmental system of checks and balances. The primary purpose of the Court is to resolve live controversies as final arbiter on the interpretation of the U.S. Constitution and the federal legislation implementing that foundational document. For scholars of federal Indian law, the U.S. Supreme Court has acted extra-constitutionally since it first heard a case involving tribal rights and has continued its “legislative” function in this area of the law ever since. Recently, the Court has stepped outside of the bounds of textual interpretation by creating a new level of civil pleading standards based on a “plausibility” requirement, rather than on the established Federal Rules of Civil Procedure notice pleading standard. While the judicial activism and unrestrained extra-textual interpretations in federal Indian law have been known to a core group in the field, the Court’s recent unmooring of civil pleading standards from the Federal Rules and settled precedent has come as a shock to many.

This essay will examine the U.S. Supreme Court’s judicial activism in relation to federal Indian law as a beginning point to discuss the recent introduction of the “plausibility” requirement in federal pleading sufficiency determinations. By examining the decisional law in the field of federal Indian law, the claimed power by the Court to redefine the legal status of Tribal Nations will become apparent. Next, the consequences of the U.S. Supreme Court’s unfettered ability to reshape law and limit access to the federal courts will be discussed. Finally, the essay will offer some conclusions on the constitutional crisis presented by the Court’s lack of judicial restraint in the legislative and political arenas. [keep reading]

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By Eric Engle.  114 Penn St. L. Rev. Penn Statim 34.

Published March 23, 2010.  View as PDF.

Preferred citation:  Eric Engle, U.N. Packing the State’s Reputation? A Response to Professor Brewster’s “Unpacking the State’s Reputation”, 114 Penn St. L. Rev. Penn Statim 34 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 34.pdf.

Rachel Brewster is an assistant professor of law at Harvard Law School.  Her article Unpacking the State’s Reputation appeared in Harvard International Law Journal. Rachel Brewster, Unpacking the State’s Reputation, 50 Harv. Int’l L.J. 231 (2009).

U.N. Packing the State’s Reputation? A Response to Professor Brewster’s “Unpacking the State’s Reputation”

I wish to address some cursory statements made by Professor Brewster, mostly in the introduction of her recent article Unpacking the State’s Reputation.[1] I present my ideas point by point as “responsa” to her work[2] – as expansions on her points – rather than present my own views (a monist, materialist, cognitivist theory of international law).[3] This has the benefit of limiting my commentary to some brief positive points of public international law.[4]

Professor Brewster stated that: “The defining characteristic of international law is the lack of a centralized enforcement mechanism.”[5] That statement is a bit simplistic and inaccurate. The United Nations (UN) operates as a central clearinghouse for the formation of global and regional multilateral conventions – treaty law. The UN also regularly promulgates “soft” law:  non-binding, persuasive, and hortatory international norms. As to enforcement, the UN regularly sends out peacekeeping forces throughout the world to enforce international law. Moreover, several international tribunals (ICJ, ECtHR, IACtHR, ITLOS, ECJ, WTO-DSB, ICTY, ICTR)[6] adjudicate international claims.[7]

As to international law itself, there is no question that since World War II there are rules of international law, jus cogens, which bind all states regardless of the state’s consent.[8] Similarly, norms erga omnes, are owed by all states to the international system as a whole.[9] Thus, any state may (not must) enforce such norms.  The concept of erga omnes norms (norms owed to the international system as a whole), though recognized internationally is not so well developed in U.S. legal discourse.[10] In contrast, the concept of jus cogens norms (non-derogable norms) is well developed in U.S. legal discourse,[11] as well as internationally.[12] The existence of norms erga omnes and jus cogens norms show that the international system as a system offers rights and remedies regardless of the opinions of any particular state.

Professor Brewster is most likely aware of all that – and would probably also point out the limitations of the ICJ and the UN as global (and globalizing) institutions. However, whatever her views are, the international system is not a lawless state of nature inhabited by self-interested power-maximizing states, which only interact in zero sum conflict like isolated billiard balls.[13] The international system is something much more complex, beautiful, and rational.  It is a self-governing society comprised of 1) states with unlimited international legal personality; 2) international organizations with derived international legal personality; and 3) even non-state actors with limited international legal personality interacting almost always in positive sum economic terms and only very exceptionally in negative sum violent conflict.

International organizations today enjoy derived international legal personality.[14] They are subjects (not objects) of international law.  They make and enforce international laws, and yet they are not states.  The WTO is not a state, yet its Dispute Settlement Understanding is a global, centralized quasi-judicial mechanism for resolving international conflict.  I have argued elsewhere that the European Union (E.U.) is a confederation, a weak state, alongside its Member States.  My view, though defensible, is not the majority view.[15] The majority view is that the E.U. is becoming a state and is already a state-like body.  Most international lawyers regard the E.U. as a “mere” international organization, and not (yet) a state. [16] However, in any case, the E.U. makes and enforces international laws by and for its Member States.  Many international organizations (UN, MERCOSUR, Andean Community, ASEAN, African Union) contribute to the formation and enforcement of international law. True, only states were subjects of international law in the Westphalian state system.  However, since 1945, States are definitely no longer the only subjects of international law.  Today, a variety of actors have varying degrees of international legal personality under international law. [17]

Even private actors shape and enforce international law today.  For example, works of learned scholars form doctrine (Fr. jurisprudence, Ger., Rechtslehre), which in turn shapes opinio juris – one element of customary international law.  Moreover, private law actors form contracts with state actors; they also promulgate model codes and codes of good conduct.  Private actors also contribute to usages, one element of customary international law.  The second necessary element of customary international law is opinio juris – that not only do states act as they do, but they also believe that they are obligated to act as they do.[18]

States simply do not have a monopoly on the formation or enforcement of international law.  Public international law contains several enforcement mechanisms for international law.  Some enforcement mechanisms, such as customary international law and jus cogens, operate in a manner similar to legislation produced by private citizens through voting and their representatives.  International law also permits private law enforcement of some claims and international law generally can be, and is, invoked before national courts.  For example, the Alien Torts Statute (28 U.S.C. § 1350) allows private persons to sue for monetary damages when they are tortiously injured in violation of the law of nations (i.e. public international law).[19] Similar statutes can be found in the laws of Europe and even in the laws of some third-world countries.[20]

Though Professor Brewster clearly states that international law is enforced by states (just like national law) and points out that international law is not always enforced, it is simply not the case that only states enforce public international law (or private national law for that matter). [21] Exile governments and insurgencies are examples of non-state actors that enforce international law against states via self-help. [22] Exile governments make de jure claims to auctoritas – one element of sovereignty (that they “ought” to rule) while insurgencies claim, de facto, potestas (that they in fact do rule – practice) without having yet obtained the auctoritas to rule.[23] These non-state actors (or if you prefer quasi-state actors) seek to, and at times do in fact, enforce legal claims under international law against the states opposing them.

Professor Brewster also points out that international law is not always enforced – implying that the non-enforcement of international law warrants a claim against the validity of international law.   Professor Brewster writes it “is not shocking that international law is not always a meaningful constraint on state action.”[24] However, national laws likewise often go unenforced.  Sometimes criminals are not caught.  At other times the state sees no reason to enforce laws with no real victims (minor infractions), or in unusual cases (e.g. suicides). Laws aren’t always enforced, whether in national or international law.  That does not mean laws do not exist or lack validity.

We can also look at the problem the other way:  is there always a central enforcement mechanism in private national law?  No.  Private law actors often use contracts to shape their legitimate expectations.  Private law parties also may resort to arbitration, whether binding or not.  In cases of private law contracts, just as in treaties, there is no centralized legal enforcement mechanism, yet the contract or treaty is nonetheless valid and enforceable law.

Professor Brewster’s understanding of international law seems formed by a state-centered realist paradigm. That model emphasizes the use of force as the key central issue of interstate relations. That model may have been somewhat accurate in early modernity, following the Treaty of Westphalia.  However, since 1989 at latest, if not already since 1945, states have interacted with each other primarily in positive sum economic terms, not in zero sum or negative sum military terms.  The realist model of state interactions is outmoded, inaccurate, and even dangerous.

What are we to make of the ideas Professor Brewster alludes to so perfunctorily?  Professor Brewster’s sketch seems to reflect a shorthand view of international law as the law of armed conflict and humanitarian law:  respectively jus ad bello (the right to go to war) and jus in bello (rights during armed conflict).  If so, that is the wrong focus for an accurate understanding of international law and politics.  The overwhelming majority of transactions among states are commercial and positive sum, not militaristic and zero or negative sum.  There is much more to public international law than the right to go to war (when may a state go to war?) and rights during armed hostilities (the rights of warring parties).

Methodologically, Professor Brewster analyzes the problem of state compliance with international law using economic analysis (cost/benefit comparisons) and game theory.  That is not legal analysis.  It is game theory and economics and sometimes misses the mark.  For example, Professor Brewster writes: “Reputation can pull states toward compliance when the realpolitik tool of retaliation is insufficient.”[25] Her invocation of Realpolitik implies that states do not have legal self-help remedies.  In fact, states can legally undertake retorsions and reprisal as self-help remedies.  Retorsions are unilateral measures of self-help undertaken by a state which would be valid regardless of the actions of other states.[26] Reprisals, in contrast, are self-help remedies which are only legal due to a justificatory wrongful act by another state.[27]

Similarly, Professor Brewster discusses expropriations, apparently assuming such are illegal under international law.[28] There, a deeper legal analysis of treaty law and court cases on the specific issue of the legality of expropriation under international law – as opposed to economic theories of gamesmanship, which have been well analyzed already – would have been more fruitful.  According to Banco Nacional de Cuba v. Sabbatino,[29] there was no recognized right to compensation for expropriation under international law in 1963.  Subsequent U.S. court cases (e.g., Bigio v. Coca-Cola[30]) seem to confirm that view, as does the general principle that the state, as sovereign, has absolute and arbitrary power over the lives and property of its subjects – a principle which is increasingly derogated from in the contemporary post-Westphalian system.  True, cases litigating the meaning of the European Convention of Human Rights seem to evidence the existence of a basic right to compensation for expropriation.[31] So, one could argue that there is now a right to compensation for expropriation under international law.  But that is at best unsettled issue – and if settled, is likely settled against what seems to be Professor Brewster’s view.

Inasmuch as international legal scholarship contributes to the formation of opinio juris, one has the right to demand rigorous legal analysis from international law scholars:  a searching examination of cases, treaties, legislation, history, and actual state practices. Economic analysis can be a useful supplement to legal analysis but is no substitute for the necessary investigation and exposition of cases, treaties, laws, and usages to determine not just what international law ought to be but also what it is.

My points here are intended to complete rather than correct Professor Brewster’s work. I am sure she must be aware of these basic rules of public international law. However, I think it would have been better had she elucidated them rather than glossing over such major points in a perfunctory fashion.

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[1] Rachel Brewster, Unpacking the State’s Reputation, 50 Harv. Int’l L.J. 231 (2009).

[2] To understand the responsa format, see Thomas Aquinas, Summa Theologica; see also the Decisions of the European Court of Justice which, doubtless under the Thomist influence, also used a response format.

[3] See Eric Engle, Ontology, Epistemology, Axiology: Bases for a Comprehensive Theory of Law, 8 Appalachian J.L. 103 (2008),.

[4] See id. Responsa present answers to legal questions; they are found in Jewish law. Their most famous civilianist is Thomas Aquinas, Summa Theologica. Decisions of the European Court of Justice are issued in responsa format: a question is posed, each contrary argument is presented, and the Court’s decision is then presented, point by point.

[5] Brewster, supra note 1, at 231.

[6] MERCOSUR – Southern Market; ASEAN – Association of Southeast Asian Nations;  ECtHR – European Court of Human Rights; IACtHR – Inter-American Court of Human Rights; ITLOS – International Tribunal for the Law of the Sea;  ECJ – European Court of Justice; WTO-DSB – World Trade Organization, Dispute Settlement Body.

[7] ICJ – International Court of Justice; European Court of Human Rights (ECtHR); Inter-American Court of Human Rights (IACtHR); International Tribunal for the Law of the Sea (ITLOS); European Court of Justice (ECJ); Dispute Settlement Body of the World Trade Organization (DSB).

[8] See Siderman de Blake v. Republic of Arg., 965 F.2d 699, 714-19 (9th Cir. 1992).

[9] See Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5).

[10] For example, a search in the “tp-all” database of Westlaw for works with “erga omnes” in the title yields just eight results, most of which are book reviews by foreign authors. In contrast, a title search in the same database for “jus cogens” yields 45 results; a title search for “ius cogens” yields two more results.

[11] See, e.g. Matar v. Dichter, 563 F.3d 9 (2d. Cir. 2009); Enahoro v. Abubakar, 408 F.3d 877,(7th Cir. 2005).

[12] See, e.g., ICJ, Nicaragua v. Columbia (2007) CR 2007/19, available at http://www.icj-cij.org/docket/files/124/13889.pdf#view=FitH&pagemode=none&search=”COGENS”.

[13] See generally Hedley Bull, The Anarchical Society, A Study of Order in World Politics viii-ix, 23, 36 (3d ed. 2002) (describing competing theories of international relations).

[14] See The Structure and Process of International Law:  Essays in Legal Philosophy Doctrine and Theory 890 (Ronald St. J. Macdonald & Douglad M. Johnston eds., 1983).

[15] See Eric Allen Engle, The Professionalization Thesis:  The TBR, the WTO and World Economic Integration, 11 Currents: Int’l Trade L.J. 16 (2002); Eric Engle, Theseus’s Ship of State:  Confederated Europa Between the Scylla of Mere Alliance and the Charybdis of Unitary Federalism, 8 Fla. Coastal L. Rev. 27 (2006).

[16] Eric Engle, Theseus’s Ship of State:  Confederated Europa Between the Scylla of Mere Alliance and the Charybdis of Unitary Federalism, 8 Fla. Coastal L. Rev. 27 (2006).

[17] See generally Eric Allen Engle, The Transformation of the International Legal System:  The Post-Westphalian Legal Order, 23 Quinnipiac L. Rev. 23 (2004) (describing the transformation of the international system from the Westphalian model of isolated sovereign states acting as rational zero or negative sum power maximizers to the post-Westphalian model of relativized sovereignty centered on human rights and commerce as the basis of an integrated globalized world order).

[18] Customary international law consists of two elements: usages (state practice) combined with opinio juris— the belief that such usages are consistent with or even obligated by international law.  Judge Blackstone states that “custom must:  (1) have been ‘used so long, that the memory of man runneth not to the contrary;’ (2) be continued without interruption; (3) be peaceably acquiesced; (4) be reasonable; (5) be certain in its terms; (6) be accepted as compulsory; and (7) be consistent with other customs.’  Jo Lynn Slama, Opinio Juris in Customary International Law, 15 Okla. City U. L. Rev. 603, 610-11 (1990).  Caveat: Blackstone was describing national customary law although ceteris paribus what holds true nationally should also apply internationally.

[19] See Eric Engle, Alvarez-Machain v. United States and Alvarez-Machain v. Sosa: The Brooding Omnipresence Of Natural Law, 13 Willamette J. Int’l L. & Disp. Resol. 149 (2005).

[20] See Eric Engle, Alien Torts in Europe? Human Rights and Tort in European Law, ZERP Discussion Paper No. 1/2005, Zentrum Für Europaische Rechtspolitik – Center for European Economic Research (2005) (Germany).

[21] “International law is enforced (when it is enforced) by states themselves.”  Brewster, supra note 1, at 231. So? National law, likewise, is generally enforced by states.

[22] See Robert D. Sloane, The Changing Face Of Recognition In International Law: A Case Study Of Tibet, 16 Emory Int’l L. Rev. 107, 170-71 (2002); A. F. M. Maniruzzaman, International Development Law as Applicable Law to Economic Development Agreements: A Prognostic View, 20 Wis. Int’l L.J. 1, 13 (2001) (arguing that international organizations, insurgents, and even individuals may have some form of international legal personality).

[23] See generally Eric Engle, Beyond Sovereignty? The State After the Failure of Sovereignty, 15 ILSA J. Int’l & Comp. L. 33 (2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1269445.

[24] Brewster, supra note 1, at 231.

[25] Id.

[26] Marks v. United States, 28 Ct. Cl. 147 (1893) (stating that retorsions are retaliatory acts short of war), aff’d, 161 U.S. 297 (1896); see also George K. Walker, The Lawfulness of Operation Enduring Freedom’s Self-Defense Responses, 37 Val. U. L. Rev. 489, 534 (2003) (stating that “[r]etorsions are unfriendly but lawful acts,” such as mobilizing reserves or recalling ambassadors).

[27] The power of reprisal is explicitly recognized in the U.S. Constitution. “[Congress shall have the power] to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” U.S. Const. art I, § 8, cl. 11. See also Michael J. Kelly, Time Warp To 1945–Resurrection Of The Reprisal And Anticipatory Self- Defense Doctrines In International Law, 13 J. Transnat’l L. & Pol’y 1, 7 (2003) (“While acts that constitute reprisals would normally be illegal, they become legal because of the aggressor’s previous illegal act. Moreover, reprisals contain a distinctly punitive purpose and are frequently viewed as justified sanctions.”).

[28] See Brewster, supra note 1, at 251.

[29] See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 461 (1963) (White, J., dissenting).

[30] Bigio v. Coca-Cola Co. 448 F.3d 176 (2d. Cir. 2006).

[31] See, e.g., Loizidou v. Turkey, 1996-VI Eur. Ct. H.R. 2216 (1996); Brumarescu v. Romania, 1999-VII Eur. Ct. H.R. 201 (1999). Right to compensation for expropriation under the European Convention of Human Rights – not customary international law.

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By Wendy Gerwick Couture.  114 Penn St. L. Rev. Penn Statim 19.

Published March 19, 2010. View as PDF.

Preferred citation:  Wendy Couture, Conley v. Gibson’s “No Set of Facts” Test:  Neither Cancer Nor Cure, 114 Penn St. L. Rev. Penn Statim 19 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 19.pdf.

Abstract:

In this essay, the author distinguishes between factual sufficiency and legal sufficiency challenges to a complaint.  Drawing from this distinction, the author argues that Conley v. Gibson’s “no set of facts” test, which the Supreme Court disavowed in Bell Atlantic Corp. v. Twombly, is properly understood as a legal sufficiency test.  Moreover, the author contends that Twombly and Ashcroft v. Iqbal addressed factual sufficiency rather than legal sufficiency.  As a consequence, the “no set of facts” test is neither the cancer maligned by the Twombly Court nor the cure to Iqbal.  The author draws from the analytical distinction between factual and legal sufficiency to propose a new factual sufficiency test that would overrule Iqbal and work symbiotically with legal sufficiency challenges:  Does the complaint allege sufficient facts to allow the court to assess the legal sufficiency of the complaint?

Conley v. Gibson’s “No Set of Facts” Test:  Neither Cancer Nor Cure

I.  Introduction

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court instituted a “plausibility” standard for assessing the sufficiency of a plaintiff’s complaint—in the process disavowing Conley v. Gibson’s “no set of facts” test.[1] Reaction to the new “plausibility” standard has been generally critical, leading to calls for the reinstatement of the “no set of facts” test.  This essay argues that the “no set of facts” test is a legal sufficiency test and thus inapplicable to the factual sufficiency challenges in Twombly and Iqbal.  As a consequence, the “no set of facts” test is neither the cancer maligned by Twombly nor the cure to Iqbal.  Rather, this essay draws from the analytical distinction between legal and factual sufficiency to propose a new factual sufficiency test: Does the complaint allege sufficient facts to allow the court to assess the legal sufficiency of the complaint?

Part II of this essay explains the distinction between legal and factual sufficiency challenges to a complaint and applies this distinction to Twombly and Iqbal.  Part III demonstrates that the Conley “no set of facts” standard is a legal sufficiency test.  Part IV explains why Twombly did not need to overrule the “no set of facts” test to institute a “plausibility” standard, and Part V explains why the “no set of facts” test is not a solution to the “plausibility” standard.  Part VI draws from the preceding sections to propose a new factual sufficiency test that would work symbiotically with the legal sufficiency standard, and Part VII briefly concludes.

II.  The Distinction Between Legal and Factual Sufficiency

Under Federal Rule of Civil Procedure 8(a)(2), a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”[2] A pleading that fails to satisfy this test is subject to dismissal under Rule 12(b)(6) for “fail[ing] to state a claim upon which relief can be granted.”[3]

A pleading can fall short of this standard in two analytically distinct ways: (1) by failing to assert a legally actionable claim (i.e., legal insufficiency); and (2) by failing to allege enough facts (i.e., factual insufficiency).[4] Twombly and Iqbal addressed the latter standard—not the former.

A.  Legal Sufficiency

A pleading fails a legal sufficiency challenge if the complainant’s allegations, even if true, are not legally actionable.[5] In Neitzke v. Williams, the Supreme Court described this standard as follows: “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”[6] Courts and commentators have characterized successful legal sufficiency challenges as “relatively unusual”[7] and “extraordinary,”[8] but, in fact, courts routinely dismiss claims at the pleading stage for legal insufficiency.  Recent examples include the following:

• Dismissal of a claim asserted under 30 U.S.C. § 185(r)(2)(A) because the statute does not create a private right of action.[9]
• Dismissal of claims asserted under §§ 11 and 12(a) of the Securities Act because the alleged misrepresentations are immaterial as a matter of law.[10]
• Dismissal of a negligence claim because Indiana’s economic loss doctrine precludes an action in tort for economic losses arising from breach of contract.[11]
• Dismissal of a claim for intentional infliction of emotional distress because the alleged conduct is not sufficiently outrageous to be actionable.[12]
• Dismissal of a claim for negligent misrepresentation because “Virginia law does not recognize such a tort.”[13]

As recognized by the Supreme Court in Neitzke, dismissal of claims for legal insufficiency “streamlines litigation by dispensing with needless discovery and factfinding.”[14]

B.  Factual Sufficiency

A pleading fails a factual sufficiency challenge if the complainant fails to allege sufficient facts in support of the asserted claims.  Until Twombly and Iqbal, courts dismissed a pleading for factual insufficiency only if it failed to “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”[15] Under this standard, a plaintiff was merely required to give “fair notice of the operative facts or the gravamen of the statement for relief.”[16] For example, courts dismissed complaints under the “fair notice” standard in the following cases predating Twombly and Iqbal:

Dismissal of gender discrimination claim where the plaintiff’s complaint failed to “identify her gender” or “allege any fact from which to infer that she was subjected to unequal treatment because she is a woman.”[17]

Dismissal of a claim that “appear[ed] to be a legal malpractice claim” where the plaintiffs failed to “identify the case which the defendants allegedly failed to prosecute.”[18]

Affirming the dismissal of a First Amendment retaliation claim where the plaintiff failed “to identify any activity on his part, even in the most general terms, that triggered his termination.”[19]

Dismissal of a variety of claims based on alleged illegality of bank loans where the complaint failed to “assert any details specifically against each individual Defendant,” “to allege that he was a customer of each Defendant,” “to identify the loans extended to him by each Defendant,” and “to identify any loans on which the Defendants foreclosed.”[20]

As explained by the Supreme Court in Swierkiewicz v. Sorema N.A., which predates Twombly and Iqbal, “[t]his simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.”[21]

C.  Twombly and Iqbal

Neither Twombly nor Iqbal addressed the legal sufficiency of the complaint.  In Twombly, it was undisputed that if, as alleged in the complaint, the defendants had entered into an agreement to “prevent competitive entry” into their markets and “not to compete with one another,”[22] they would have violated § 1 of the Sherman Act.[23] Similarly, in Iqbal, no one disputed that if, as alleged in the complaint, the defendants had “adopted an unconstitutional policy that subjected [the plaintiff] to harsh conditions of confinement on account of race, religion, or national origin,”[24] they would have been subject to Bivens liability.[25]

Rather, Twombly and Iqbal turned on the factual sufficiency of the plaintiffs’ complaints.  In Twombly, the issue was whether the plaintiff had alleged sufficient factual support for the existence of an unlawful agreement among the defendants,[26] and in Iqbal, the issue was whether the plaintiff had pleaded “sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue . . . for the purpose of discriminating on account of race, religion, or national origin.”[27]

The first step in Twombly and Iqbal was to identify and disregard mere “legal conclusions.”[28] Thus, in Twombly, the Court disregarded the plaintiffs’ allegations that the defendants “entered into a contract, combination, or conspiracy” and “agreed not to compete with one another.”[29] Similarly, in Iqbal, the Court disregarded the plaintiff’s allegations that the defendants “each knew of, condoned, and willfully and maliciously agreed to subject” Iqbal to the confinement at issue “as a matter of policy, solely on account of religion, race, and/or national origin and for no legitimate penological interest;” that Ashcroft was the “principal architect” of the detention policy; and that Mueller was “instrumental in adoption, promulgation, and implementation.”[30]

The second step in both cases was to identify the well-pleaded factual allegations, assume their truth, and assess whether they “plausibly give rise to an entitlement to relief.”[31] In performing this plausibility analysis, the Court emphasized that factual allegations that are “merely consistent” with the element at issue are insufficient if a “more likely” explanation exists.[32] Thus, in Twombly, allegations of parallel conduct among the defendants failed to satisfy the plausibility standard.[33] The defendants’ “resistance to the upstarts” was merely “the natural, unilateral reaction of each ILEC intent on keeping its regional dominance;” and the defendants’ “competitive reticence” had “an obvious alternative explanation.”[34] Similarly, in Iqbal, allegations that the FBI, under the defendants’ direction, “arrested and detained thousands of Arab Muslim men” and that the defendants approved a “policy of holding post-September-11th detainees in highly restrictive conditions of confinement” were consistent with purposeful discrimination, but—”given more likely explanations”—the Court held that these allegations failed the plausibility standard. [35] In short, Twombly and Iqbal reinterpreted the “fair notice” standard for factual sufficiency as a “plausibility” standard.[36]

III.  Conley v. Gibson’s Analysis of Factual and Legal Sufficiency

Conley v. Gibson’s “no set of facts” test is central to the debate about Twombly and Iqbal.  In Twombly, the Supreme Court, after articulating the plausibility standard, explicitly disavowed the “no set of facts” test.[37] Moreover, some opponents of Twombly and Iqbal have called for a return to the “no set of facts” test.[38]

Yet, the “no set of facts” test has been misunderstood by the Supreme Court and many—but not all[39]—commentators.  As a detailed examination of the case background and the Conley Court’s opinion demonstrate, the “no set of facts” test addresses legal sufficiency—not factual sufficiency.  As a consequence, the “no set of facts” test is neither the cancer maligned by Twombly nor the cure to Iqbal.

A.  Case Background

In Conley v. Gibson, the plaintiffs, African-American union members, filed a putative class action on behalf of similarly situated union members, against their union and some of its agents.[40] The plaintiffs alleged that the union, in violation of the Railway Labor Act, had discriminated against them on the basis of race or color by segregating them “into a local union of the craft in which they are cut off from and denied effective representation on a par equal to that afforded to white employees who are members of the same craft or class.”[41] In particular, the plaintiffs alleged that the union refused to represent their interests when their employer abolished 45 jobs held by African-American employees and then immediately rehired white employees and some of the previously fired African-American employees—with a loss of seniority.[42]

The defendants moved to dismiss the complaint on the following grounds: (1)  the court lacked subject matter jurisdiction because the National Railroad Adjustment Board had exclusive jurisdiction over disputes involving collective bargaining agreements in the railroad industry; (2) the suit was missing an indispensible party defendant, the plaintiffs’ employer; (3) the allegations about the agreement between the employer and the union failed “to present a justifiable issue;” and (4) the complaint “fail[ed] to state a claim upon which relief can be granted.”[43]

The district court granted the motion to dismiss on the first asserted ground—lack of subject matter jurisdiction.[44] The Fifth Circuit Court of Appeals affirmed the judgment, without opinion,[45] and the Supreme Court granted the petitioners’ petition for writ of certiorari.[46] In their Supreme Court briefing, the respondents reasserted the grounds raised in their motion to dismiss.[47] The Supreme Court, after rejecting the first two grounds,[48] addressed the respondents’ sufficiency arguments, which challenged both the legal and the factual sufficiency of the complaint.

B.  Conley’s Analysis of Legal Sufficiency

First, the respondents challenged the legal sufficiency of the complaint, arguing that a union’s duty to act without discrimination “cannot be extended to the field of policing or administering agreements and redressing individual grievances.”[49] The respondents argued that the union’s duty to act without discrimination extends only to the union’s exclusive authority “to bind the individual employee in contract negotiations with the carrier.”[50]

The Supreme Court soundly rejected this legal sufficiency challenge pursuant to the “no set of facts” test.  First, the Supreme Court stated the applicable test for assessing the complaint’s sufficiency:

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.[51]

Applying this “no set of facts” test, the Supreme Court rejected the respondents’ legal sufficiency argument that the “duty not to draw ‘irrelevant and invidious’ discrimination among those it represents” comes to an “abrupt end . . . with the making of an agreement between union and employer.”[52] Rather, the Court recognized that collective bargaining is an ongoing process, and the prohibition on discrimination applies to the entire process.[53]

C.  Conley’s Analysis of Factual Sufficiency

The respondents also challenged the factual sufficiency of the complaint, arguing that there was insufficient factual support for alleged discriminatory conduct by the union.  For example, the respondents argued: “The factual allegations of the Complaint are completely vague as to what provision of, or in what manner, the bargaining agreement was violated by the Railroad when it abolished the particular jobs in question, and equally vague as to how Respondents could have prevented such action by the Railroad or successfully protested it.”[54]

The Supreme Court rejected this factual sufficiency challenge pursuant to the “fair notice” standard.  The Court first clarified the applicable test: “[A]ll the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”[55] Applying this test, the Court rejected the factual sufficiency challenge because the “petitioners’ complaint adequately set forth a claim and gave the respondents fair notice of its basis.”[56]

D.  Distinction Between Conley’s Tests for Legal and Factual Sufficiency

In sum, the Conley Court addressed both legal and factual sufficiency challenges.  In addressing the former, the Court applied the “no set of facts” test; and in addressing the latter, the Court applied the “fair notice” test.

The three cases cited by the Supreme Court as authority for the “no set of facts” test[57] further demonstrate that this test is properly understood as a legal sufficiency test.  In the first, Leimer v. State Mutual Life Assurance Co., the Eighth Circuit reversed the dismissal of the plaintiff’s complaint because “[t]hat plaintiff’s claim is barred by estoppels and laches . . . does not conclusively appear from the facts stated in the amended complaint.”[58] The court contrasted the case at hand with cases where a complaint is properly dismissed for legal insufficiency: “Such a motion, of course, serves a useful purpose where, for instance, a complaint states a claim based upon a wrong for which there is clearly no remedy . . . .”[59] Similarly, in Dioguardi v. Durning, the Second Circuit reversed the dismissal of a complaint because “[i]t appears to be well settled that the collector may be held personally for a default or for negligence in the performance of his duties.”[60] Finally, in Continental Collieries, Inc. v. Shober, the Third Circuit reversed the dismissal of the complaint because, under the facts alleged, it was not “a certainty” that the cause of action was unenforceable under the applicable statute of frauds.[61]

Subsequent courts and commentators have contributed to the confusion between the “no set of facts” legal sufficiency test and the “fair notice” factual sufficiency test by conflating the two standards and treating them as synonymous.[62] Indeed, the Second Circuit in its Twombly opinion used the “no set of facts” test to assess the factual sufficiency of the complaint,[63] which perhaps explains why the Supreme Court felt the need to overrule the “no set of facts” test when overruling the Court of Appeals in Twombly.

IV.  The “No Set of Facts” Test is Not the Cancer Maligned by Twombly

In Twombly, after setting forth the “plausibility” standard for assessing factual sufficiency, the Supreme Court expressly disavowed the “no set of facts” test.[64] The Court reasoned: “This ‘no set of facts’ language can be read in isolation as saying that any statement revealing the theory of the claim will suffice unless its factual impossibility may be shown from the face of the pleadings.”[65]

Indeed, the “no set of facts” test would be unworkable as a factual sufficiency test.  For example, a complaint alleging merely “the defendant was negligent” would pass a “no set of facts” test of factual sufficiency.  Many courts and commentators have expressed skepticism about the “no set of facts” test for this very reason.[66]

As shown above, however, the “no set of facts” test is a legal sufficiency test.  Since the issue in Twombly was the factual sufficiency of the complaint, the Supreme Court had no need to address—let alone overrule—the “no set of facts” test.  Ultimately, the “no set of facts” test is not the cancer maligned by the Twombly Court.

V.  The “No Set of Facts” Test is Not a Cure to Iqbal

By the same token, the “no set of facts” test is not a cure to Iqbal.  Twombly and Iqbal instituted a “plausibility” standard for assessing factual sufficiency.  Reinstating the “no set of facts” test—a legal sufficiency standard—would not overrule the plausibility standard.  Yet several legislative proposals attempt to do just that.

The Open Access to Courts Act of 2009 proposes to reinstate the “no set of facts” test: “A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief.”[67]

Similarly, the Notice Pleading Restoration Act of 2009 proposes to reinstate “the standards set forth by the Supreme Court of the United States in Conley v. Gibson.”[68] The Conley v. Gibson opinion contains both the “no set of facts” legal sufficiency test and the “fair notice” factual sufficiency test, but this bill would most likely be interpreted as reinstating the “no set of facts” test because, although Conley has been cited for both tests, it is most famous for its “no set of facts” test.  According to Westlaw, Conley’s “no set of facts” test has been cited by courts 45,090 times,[69] while Conley’s “fair notice” test has been cited by courts only 7,063 times.[70] Additionally, the Supreme Court did not explicitly overrule Conley’s “fair notice” standard in Twombly and Iqbal.  Indeed, in Twombly, the Court cited Conley with approval as the source of the “fair notice” test.[71] Rather, the Court reinterpreted the “fair notice” test as requiring plausibility.[72] Therefore, even if the bill were understood as reinforcing the “fair notice” test, it would not necessarily follow that the Twombly/Iqbal gloss on the “fair notice” standard would be overruled.

VI.  Reform of Factual Sufficiency Test

The “plausibility” standard in Twombly and Iqbal has been roundly criticized,[73] perhaps most compellingly because it denies court access to prospective plaintiffs with meritorious claims but without the resources to gather proof without the benefit of discovery.[74] As explained above, however, reinstating the “no set of facts” test would not accomplish the desired reform.

A.  Reinstatement of “Fair Notice” Test of Factual Sufficiency

Certainly the most obvious reform would be to reinstate the “fair notice” standard for factual sufficiency as it was interpreted before Twombly.  For example, Professor Stephen Burbank in testimony before Congress proposed the reinstatement of “interpretations of the Federal Rules of Civil Procedure by the Supreme Court of the United States, and by lower decisions consistent with such interpretations, that existed on May 20, 2007.”[75] Draft legislation to this effect is currently pending before the Senate.[76]

The “fair notice” factual sufficiency standard has always been somewhat problematic, however, because it renders superfluous Federal Rule of Civil Procedure 12(e), which allows a party to move for a more definite statement if a pleading “is so vague or ambiguous that the party cannot reasonably prepare a response.”[77] Moreover, the existence of separate legal and factual sufficiency standards, which do not work symbiotically, results in a disjointed interpretation of Rule 8(a)(2), perhaps best exemplified by the Twombly and Iqbal opinions.

B.  Proposal for a New Factual Sufficiency Test

This essay proposes that, rather than merely reinstating the old factual sufficiency test, Congress take this opportunity to reassess the appropriate factual sufficiency standard.  As explained above, factual sufficiency and legal sufficiency are analytically distinct.  Rather than operating as different frameworks, however, the factual sufficiency test and legal sufficiency test should work symbiotically.

In particular, this essay proposes the following factual sufficiency test: Does the complaint allege sufficient facts to allow the court to assess the legal sufficiency of the complaint?

Rather than focusing on “fair notice” to the defendant, who has resort to Rule 12(e) if unable to discern the plaintiff’s allegations, this factual sufficiency standard would focus on notice to the court.  Indeed, some district courts already include themselves as part of the intended audience to whom “fair notice” must be given.[78] The crucial inquiry in assessing whether a pleading affords the court sufficient notice would be whether the court possesses enough information about the plaintiff’s version of events to determine whether the complaint is legally sufficient.[79]

Applying this standard to Twombly and Iqbal, both complaints would survive dismissal because they apprise the court of the plaintiffs’ versions of events, thus enabling the court to rule that – assuming the veracity of the plaintiffs’ versions—the claims are legally actionable.  In other words, assuming that the Twombly defendants had entered into an agreement to “prevent competitive entry” into their markets and “not to compete with one another,”[80] they would have violated § 1 of the Sherman Act.[81] Similarly, assuming that the Iqbal defendants had “adopted an unconstitutional policy that subjected [the plaintiff] to harsh conditions of confinement on account of race, religion, or national origin,”[82] they would have been subject to Bivens liability.[83]

By the same token, a complaint that merely alleges that “the defendant was negligent” would fail this standard because, without an understanding of the plaintiff’s version of events, the court would be unable to assess whether the claim is legally actionable.[84] For example, in most jurisdictions, if the plaintiff’s negligence claim sought purely economic damages for breach of a contractual duty, the economic loss rule would bar the claim.[85] Therefore, the plaintiff must plead sufficient facts to allow the court to assess whether, under the plaintiff’s version of events, the negligence claim survives the economic loss rule.

Under this proposal, factual and legal sufficiency tests would operate symbiotically to allow the court to dismiss claims that are not actionable under the plaintiff’s version of events, thus “dispens[ing] with needless discovery and factfinding.”[86] At the same time, this proposal would reopen the courthouse doors to plaintiffs with meritorious claims but without the resources to compile their evidence without the aid of discovery.  Finally, under this proposal, defendants whose only quibble is the lack of notice to themselves would have to resort to a Rule 12(e) motion for more definite statement rather than rely on a Rule 12(b)(6) motion to dismiss.

VII.  Conclusion

Several conclusions follow from the analytical distinction between factual and legal sufficiency and the classification of the “no set of facts” test as a legal sufficiency test.  First, the Twombly Court’s disavowal of the test was unnecessary.  More importantly, efforts to reverse Iqbal by reinstating the “no set of facts” test are misguided.  Rather, if Congress wishes to reverse the plausibility standard, it should do so with a factual sufficiency test.  One example is to reinstate the “fair notice” standard without a “plausibility” gloss.  This essay proposes that, rather than merely reinstating the pre-Twombly standard, Congress should enact a factual sufficiency test that works symbiotically with the legal sufficiency test.  In particular, this essay proposes the following factual sufficiency test: Does the complaint allege sufficient facts to allow the court to assess the legal sufficiency of the complaint?

---

[1].    Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

[2].    Fed. R. Civ. P. 8(a)(2).

[3].    Fed. R. Civ. P. 12(b)(6); 5 Charles Alan Wright & Arthur R. Miller,  Federal Practice & Procedure § 1356 (3d ed. 2009) (“Thus, the provision [Rule 12(b)(6)] must be read in conjunction with Rule 8(a), which sets forth the requirements for pleading a claim for relief in federal court and calls for ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’  Only when the plaintiff’s complaint fails to meet this liberal pleading standard is it subject to dismissal under Rule 12(b)(6).”) (citing authority).

[4].    See Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) (“Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”); Stephen C. Yeazell, Civil Procedure 363 (7th ed. 2008) (“Pleading problems fall roughly into two groups.  In one group the underlying dispute is about the substantive law: What facts justify relief for this kind of claim?  In the other group there is no dispute about the content of substantive law, but there is a disagreement about whether the facts pleaded justify relief under that law.”).

[5].    5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1215 (3d ed. 2009) (“If the plaintiff does plead particulars, and they show he has no claim, then the plaintiff has pleaded himself out of court.”).

[6].    Neitzke v. Williams, 490 U.S. 319, 326 (1989).

[7].    5 Charles Alan Wright & Arthur R. Miller, 5 Federal Practice & Procedure § 1357 (3d ed. 2009).

[8].    Corsican Prods. v. Pitchess, 338 F.2d 441, 442 (1964) (quoting Wright, Federal Courts 250 (1963)).

[9].    Riviera Drilling & Exploration. Co. v. Gunnison Energy Corp., No. 08-CV-02486-REB-CBS, 2009 WL 3158163, at *3 (D. Colo. Sept. 20, 2009).

[10].    Landmen Partners Inc. v. Blackstone Group, L.P., 659 F. Supp. 2d 532, 544 (S.D.N.Y 2009).

[11].    Hasse Construction Co. v. Gary Sanitary District Bd. of Comm’rs, No. 2:06-CV-322-PRC, 2008 WL 2169000, at *6 (N.D. Ind. May 23, 2008).

[12].    Hamilton v. Prudential Financial, No. 2:07-CV-00944-MCE-DAD, 2007 WL 2827792, at *4 (E.D. Cal. Sept. 27, 2007).

[13].    JTH Tax, Inc. v. Whitaker, No. 2:07-CV-170, 2007 WL 2821830, at *3 (E.D. Va. Sept. 27, 2007).

[14].    Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

[15].    Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1215 (3d ed. 2009) (“In federal practice, the test of a complaint’s sufficiency simply is whether the document’s allegations are detailed and informative enough to enable the defendant to respond.”).

[16].    Kyle v. Morton High Sch., 144 F.3d 448, 456 (7th Cir. 1999) (citing supportive authority); see Charles 5 Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1215 (“Of course, great generality in the statement of these circumstances will be permitted as long as the defendant is given fair notice of what is claimed; nonetheless, Rule 8(a)(2) does require that the pleader disclose adequate information concerning the basis of his claim for relief as distinguished from a bare averment that he wants relief and is entitled to it.”).

[17].    Baldwin v. LIJ N. Shore Health Sys., 392 F. Supp. 2d 479, 483-84 (E.D.N.Y. 2005) (“This claim must fail because the plaintiff has not alleged facts which give the defendant fair notice of her gender discrimination claim and the grounds upon which it rests.”).

[18].    Schwartz v. Steven Kramer & Assocs., No. 90-4943, 1991 WL 133507, at *2 (E.D. Pa. July 17, 1991) (“Count 3 fails to place the defendants on adequate notice as to the plaintiffs’ claim.”).

[19].    Kyle, 144 F.3d at 457 (“Kyle’s complaint fails to give fair notice to the court and the opposing party of the operational facts of his complaint.”).

[20].    Rudd v. Keybank, N.A., No. C2-05-CV-0523, 2006 WL 212096, at *3 (S.D. Ohio Jan. 25, 2006) (“Rudd fails to provide sufficient details to put Defendants on notice of the claims he asserts against them.”).

[21].    Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

[22].    Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 551 (2007) (quoting the plaintiffs’ complaint).

[23].    See id. at 571 (Stevens, J., dissenting) (“Thus, this is a case in which there is no dispute about the substantive law.  If the defendants acted individually, their conduct was perfectly lawful.  If, however, that conduct is the product of a horizontal agreement among potential competitors, it was unlawful.”); id. at 588 (Stevens, J. dissenting) (“The Court does not suggest that an agreement to do what the plaintiffs allege would be permissible under the antitrust laws.  Nor does the Court hold that these plaintiffs have failed to allege an injury entitling them to sue for damages under those laws.”) (citations omitted).

[24].    Ashcroft v. Iqbal, 129 S. Ct. 1937, 1942 (2009).

[25].    See id. at 1947-48 (recognizing the existence of a Bivens action “to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment” and “assum[ing], without deciding, that respondent’s First Amendment claim is actionable under Bivens”).

[26].    See Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1950.

[27].    Iqbal, 129 S. Ct. at 1948-49.

[28].    Twombly, 550 U.S. at 557; Iqbal, 129 S. Ct. at 1944.

[29].    Twombly, 550 U.S. at 551 (quoting the complaint); id. at 557 (“[A] conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.”); id. at 564 (“Although in form a few stray statements speak directly of agreement, on fair reading these are merely legal conclusions resting on prior allegations.”).

[30].    Iqbal, 129 S. Ct. at 1944 (quoting the plaintiff’s complaint); id. at 1951 (disregarding these allegations as “conclusory and not entitled to be assumed true”).

[31].    Id. at 1950.

[32].    See Twombly, 550 U.S. at 557 (recognizing “[t]he need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement”); Iqbal, 129 S. Ct. at 1950 (describing the Court’s reasoning in Twombly) (“Acknowleding that parallel conduct was consistent with an unlawful agreement, the Court nevertheless concluded that it did not plausibly suggest an illicit accord because it was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed free-market behavior.”).

[33].    See Twombly, 550 U.S. at 565 (stating the “nub of the complaint”); id. at 570 (“Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.”).

[34].    Id. at 566-68.

[35].    Iqbal, 129 S. Ct. at 1951.

[36].    Id. at 1949 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”) (quoting Twombly, 550 U.S. at 570).

[37].    See Twombly, 550 U.S. at 563.

[38].    See Part V infra.

[39].    Professor Stephen B. Burbank, after conducting an in-depth analysis of the Conley v. Gibson opinion, reaches the same conclusion as this author—that the “no set of facts” test addressed legal sufficiency, not factual sufficiency.  Hearing on Whether the Supreme Court has Limited Americans’ Access to Court: Hearing Before the Committee on the Judiciary, 111th Cong. 11 (Dec. 2, 2009) (prepared statement of Stephen B. Burbank), available at http://www.pennstatelawreview.org/iqbal-portal/; Hearing on Whether the Supreme Court has Limited Americans’ Access to Court: Hearing Before the Committee on the Judiciary, 111th Cong. 13-16 (Dec. 2, 2009) (Stephen B. Burbank’s Answers to Senator Arlen Specter’s Post-Hearing Questions), available at http://www.pennstatelawreview.org/iqbal-portal/.

[40].    See Compl. § IV, Trans. of Record at 7, Conley v. Gibson, 355 U.S. 41 (1957) (No. 7).

[41].    Compl. § III, Trans. of Record at 6, Conley v. Gibson, 355 U.S. 41 (1957) (No. 7).

[42].    See Compl. § IV, Trans. of Record at 11-12, Conley v. Gibson, 355 U.S. 41 (1957) (No. 7).

[43].    Mot. to Dis., Trans. of Record at 17-18, Conley v. Gibson, 355 U.S. 41 (1957) (No. 7).

[44].    Conley v. Gibson, 138 F. Supp. 60, 62 (S.D. Tex. 1955).

[45].    Conley v. Gibson, 229 F.2d 436 (5th Cir. 1956).

[46].    Conley v. Gibson, 352 U.S. 818 (1956).

[47].    Brief for Respondents, Conley v. Gibson, 355 U.S. 41 (1957), available at 1957 WL 87662, at *4-5 (U.S. Oct. 2, 1957).

[48].    Conley v. Gibson, 355 U.S. 41, 44-45 (1957).

[49].    Brief for Respondents, Conley v. Gibson, 355 U.S. 41 (1957), available at 1957 WL 87662, at *30 (U.S. Oct. 2, 1957).

[50].    Id. (“In short, if the exclusive authority to act does not exist, neither does the obligation.”).

[51].    Conley, 355 U.S. at 46.

[52].    Id. (internal citation omitted).

[53].    See id.

[54].    Brief for Respondents, Conley v. Gibson, 355 U.S. 41 (1957), available at 1957 WL 87662, at *26 (U.S. Oct. 2, 1957); id. at *18 (“In short, with the single exception of the allegations of the Complaint concerning the maintenance of a separate Negro Lodge by the Brotherhood . . . the only acts of discrimination alleged by the Complaint appear to be on the part of the Railroad . . . .”).

[55].    Conley, 355 U.S. at 47 (quoting Fed. R. Civ. P. 8(a)(2)).

[56].    Id.

[57].    Id. at 46 n.5.

[58].    Leimer v. State Mut. Life Assur. Co., 108 F.2d 302, 305 (8th Cir. 1940).

[59].    Id. at 305-06.

[60].    Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944).

[61].    Continental Collieries, Inc. v. Shober, 130 F.2d 631, 635 (3d Cir. 1942).

[62].    See, e.g., Jay S. Goodman, Two, New, U.S. Supreme Court Cases Raise the Question: Is Notice Pleading Dead?, 58 R.I. Bar J. 5, 5 (Jan/Feb 2010) (“That rule became known as notice pleading, as encapsulated in the rule that a 12(b)(6) motion had to be denied if ‘it cannot be said that there (is) no set of facts on which (a respondent) would be entitled to relief.’”) (quoting Conley, 355 U.S. at 47); Emily Sherwin, The Jurisprudence of Pleading: Rights, Rules, and Conley v. Gibson, 52 How. L. J. 73, 73 (2008) (using ellipses to join the two tests); see also Patricia W. Hatamyer, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 Am. U. L. Rev. 553, 561-62 (2010) (“For decades, courts have started their opinions with boilerplate language about the governing standards of a 12(b)(6) motion . . .  Of course, courts frequently begin their recitations by quoting Rule 8(a)(2). After Conley, the boilerplate language almost always included that case’s two best-known quotes: the ‘no set of facts’ quote and the ‘fair notice’ quote.”).

[63].    See Twombly v. Bell Atlantic Corp., 425 F.3d 99, 107, 114 (2d Cir. 2005).

[64].    See Twombly, 550 U.S. at 563 (“[T]his famous observation has earned its retirement.”).

[65].    Id. at 561.

[66].    See id. at 562 (citing courts and commentators that “have balked at taking the literal terms of the Conley passage as a pleading standard”).

[67].    Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. (2009).

[68].    Notice Pleading Restoration Act of 2010, S. 1504, 111th Cong. (2009).

[69].    See Westlaw.com (last visited February 20, 2010).  West Headnote 5, containing the “no set of facts” test, has 45,090 case citations.

[70].    See Westlaw.com (last visited March 5, 2010).  No West Headnote directly states the “fair notice” test.  Therefore, the author ran the following terms and connectors search in the “allcases” database: (conley gibson) /50 “fair notice.”  This search generated 7,063 results.

[71].    See Twombly, 550 U.S. at 555.

[72].    See id. at 570.

[73].    See, e.g., Elizabeth Thornburg, Law, Facts, and Power, 114 Penn St. L. Rev. Penn Statim 1 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 1.pdf; see also Symposium: Pondering Iqbal, 14 Lewis & Clark L. Rev. 1-450 (2010) (compiling numerous scholarly critiques of Iqbal).

[74].    See Hearing on Whether the Supreme Court has Limited Americans’ Access to Court: Hearing Before the Committee on the Judiciary, 111th Cong. 11 (Dec. 2, 2009) (prepared statement of Stephen B. Burbank), available at http://www.pennstatelawreview.org/iqbal-portal/.

[75].    Hearing on Whether the Supreme Court has Limited Americans’ Access to Court: Hearing Before the Committee on the Judiciary, 111th Cong. App. A (Dec. 2, 2009) (prepared statement of Stephen B. Burbank), available at http://www.pennstatelawreview.org/iqbal-portal/.

[76].    Notice Pleading Restoration Act of 2010, S. 1504, 111th Cong. (2010) (proposing an almost identical standard).

[77].    Fed. R. Civ. P. 12(e); see Hearing on Whether the Supreme Court has Limited Americans’ Access to Court: Hearing Before the Committee on the Judiciary, 111th Cong. App. A (Dec. 2, 2009) (prepared statement of Stephen B. Burbank) (arguing that factual sufficiency should be tested only under Rule 12(e)), available at http://www.pennstatelawreview.org/iqbal-portal/.

[78].    See, e.g., Gregory v. TCF Bank, No. 09-C-5243, 2009 WL 4823907, at *2 (N.D. Ill. Dec. 10, 2009) (“The purpose behind Rule 8 is to ensure that both the defendant and the court have fair notice of the claims alleged.”) (citation omitted) (emphasis added); Potts v. Pike County Sheriff’s Office, No. 2:09-CV-974-ID, 2009 WL 3747213, at *2 (M.D. Ala. Nov. 5, 2009) (stating that, in order to comply with Rule 8(a), a complaint must “provide [] fair notice to the court and a defendant of the claim against the defendant”) (emphasis added); McCarthy v. Stollman, No. 06-Civ-2613, 2009 WL 1159197, at *3 (S.D.N.Y. Apr. 29, 2009) (stating that a pleading “must give the court and the defendant fair notice of what [the] plaintiff’s claim is and the grounds upon which it rests”) (citation omitted) (emphasis added); Rourke v. Rhode Island, No. 09-10S, 2009 WL 1160255, at *2 (D.R.I. Apr. 27, 2009) (“One of the primary purposes of Rule 8(a) is to give the defendant(s) and the Court fair notice of the claim being made by a plaintiff.”) (emphasis added).

[79].    Accord Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L. Rev. 433, 435 (1986) (“Contrary to the conventional wisdom that the sole purpose of pleadings is to give notice, this Article suggests that their role should be to enable courts to decide cases on their merits.”).

[80].    Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 551 (2007) (quoting the plaintiffs’ complaint).

[81].    Id. at 571.

[82].    Ashcroft v. Iqbal, 129 S. Ct. 1937, 1942 (2009).

[83].    Id. at 1947-48.

[84].    See Richard L. Marcus, The Puzzling Persistence of Pleading Practice, 76 Tex. L. Rev. 1749, 1770-71 (1998) (recognizing that courts may vary the level of factual detail required at the pleading stage depending on whether additional factual allegations will resolve the case); id. at 1771 (“Even though Palsgraf was also a claim for negligence, such a delphic complaint cries out for inclusion of more details, not only to give defendant notice but also to permit the court to scrutinize the legal sufficiency of plaintiff’s claim in terms of the necessary elements of foreseeability and proximate cause.”).

[85].    Vincent R. Johnson, The Boundary-Line Function of the Economic Loss Rule, 66 Wash. & Lee L. Rev. 523, 526 (2009).

[86].    Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

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By Jeffrey Shulman. 114 Penn St. L. Rev. Penn Statim 13.

Published March 11, 2010.  View as PDF.

Preferred citation:  Jeffrey Shulman, When is Religious Speech Outrageous?:  Snyder v. Phelps and the Limitations on Religious Advocacy, 114 Penn St. L. Rev. Penn Statim 13 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 13.pdf.

When Is Religious Speech Outrageous?: Snyder v. Phelps and the Limits of Religious Advocacy

The Constitution affords great protection to religiously motivated speech.  Religious liberty would mean little if it did not mean the right to profess and practice as well as to believe.  But are there limits beyond which religious speech loses its constitutional shield?  Would it violate the First Amendment to subject a religious entity to tort liability if its religious profession causes emotional distress?  When is religious speech outrageous?

These are vexing questions, to say the least; but the United States Supreme Court will take them up next term—and it will do so in a factual context that has generated as much heat as light.  On March 8, 2010, the Court granted certiorari in Snyder v. Phelps.[1] It is a tort case brought by a family grieving the untimely death of their son.  It is a free speech case, testing the boundaries of the constitutional commitment to the marketplace of ideas.  It is a religious liberty case that has made unlikely allies of those on opposite sides of the political and cultural divides that make our liberal democracy such a challenging enterprise.

The most common of legal commonplaces is that the First Amendment protects speech that some people—perhaps, most people—will find offensive.  Indeed, the protection of offensive speech is one of the great hallmarks of our constitutional order, the stamp that establishes the genuineness and the generosity of our freedoms, including a longstanding tradition of religious liberty.  It is no surprise that our courts, by training and instinct, want to protect the right to speak—and nowhere more so than where speech is religiously motivated.  It may be this very protectiveness that led the Fourth Circuit to make such a mess of things.

The basic facts of the case are clear enough.  Marine Lance Corporal Matthew A. Snyder was killed in Iraq in the line of duty.  His funeral, held in Westminster, Maryland, was picketed by the Westboro Baptist Church.  The church held signs that read, “You are going to hell,” “God hates you,” “Thank God for dead soldiers,” and “Semper fi fags.”  Following the funeral, the church posted on its website (godhatesfags.com) an “epic” entitled “The Burden of Marine Lance Cpl. Matthew Snyder.”  Matthew’s burden, as the church saw it, was that he had been “raised for the devil” and “taught to defy God.”  Matthew’s father, Albert Snyder, brought a civil action against the Westboro Baptist Church in federal district court, asserting a claim for intentional infliction of mental and emotional distress (among other causes of action).[2] He was awarded $10.9 million in compensatory and punitive damages.

That judgment was reversed by the Fourth Circuit.[3] The court could have avoided the constitutional question by holding that Mr. Snyder failed to prove at trial sufficient evidence to support his tort claims.[4] But the court waded into murky doctrinal waters—and made them a whole lot murkier.

The court reasoned that the church’s speech was constitutionally protected unless a reasonable person would understand it to be communicating objectively verifiable facts.  There are, the court went on to say, two categories of speech that cannot reasonably be interpreted as stating actual facts about an individual.  The first is statements of public concern that fail to contain a provably false factual connotation.  The second is rhetorical statements employing loose, figurative, or hyperbolic language.  These statements are categorically protected, regardless of the plaintiff’s status as a public or private figure.

Had the court gone no further, it would have generated confusion enough for sorting out by the Supreme Court.  To begin with, Mr. Snyder was not making a defamation claim.  So it is not clear why the dispositive question is whether the church’s assertions were susceptible of being proved true or false.  Nor is it clear why, whether the claim is defamation or emotional distress, the plaintiff’s status as a private figure is irrelevant.

But the court gave short shrift to the complexities of the case law.  It did not matter whether the church’s statements were of public concern because they did not assert provable facts.  They employed “hyperbolic rhetoric” to spark debate.  The court noted that some signs (those reading “You’re Going to Hell” and “God Hates You”) could be interpreted by a reasonable reader as referring specifically to Matthew Snyder.  No matter, because, as the court concluded, “[w]hether an individual is ‘Going to Hell’ or whether God approves of someone’s character could not possibly be subject to objective verification.”[5] With its single-minded focus on the factualness of the church’s claims (again, the wrong focus for an emotional distress case), the court looked for contextual evidence that would support its conclusion that no reasonable person could think the church was asserting provable facts.  Remarkably, it found that evidence in the very outrageousness of the church’s speech:

The general context of the speech in this proceeding is one of impassioned (and highly offensive) protest, with the speech at issue conveyed on handheld placards.  A distasteful protest sign regarding hotly debated matters of public concern, such as homosexuality or religion, is not the medium through which a reasonable reader would expect a speaker to communicate objectively verifiable facts.  In addition, the words on these signs were rude, figurative, and incapable of being objectively proven or disproven.  Given the context and tenor of these two signs, a reasonable reader would not interpret them as asserting actual facts about either Snyder or his son.[6]

With perverse illogic, the Fourth Circuit has created a legal incentive for religious speakers to be especially abusive and inflammatory: by its own calculus, the more “hyperbolic” the speech, the more it is constitutionally protected.  But nothing in the law suggests that the First Amendment requires courts to engage in such hermeneutic gymnastics.

What the Westboro Baptist Church wants is the right to make any private individual the target of personal verbal assault about matters of private concern—and to do so with complete immunity from the law.  The Supreme Court has said that speech about public officials or public figures, or speech about matters of public concern, may be constitutionally protected, even if it causes emotional distress (though even these forms of speech do not get absolute protection).  But the Court has never held that the First Amendment protects personal invective “delivered in the milieu of religious practice.”[7]

This case tests the proposition stated in Cantwell v. Connecticut that “[r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution.”[8] If the speech at question here was directed toward a private person and was not a matter of public concern—if, in other words, this case is about mere personal invective—there is no reason to grant the church constitutional protection.[9] If the church’s speech was targeted toward a most unwilling listener, one who was held captive by special circumstances, there is even more reason why the church should be adjudged to have forfeited any claim to constitutional immunity from tort suit. [10]

Tort liability subjects religious entities to neutral and generally applicable principles of tort law.  If the church’s religious advocacy amounts to tortious conduct, it would be subject to suit, as would any other religious, or non-religious, group.  But tort liability places no special burden on religious entities.  Nor does the resolution of tort disputes necessarily involve any intermeddling in internal church affairs.[11] If anything, the Fourth Circuit treads on dangerous ground when it concludes that the church does not literally mean what it says.  Because it focused on the factualness, and not the hurtfulness, of the church’s statements, the court dismissed those statements as figurative and irreverent.  That is an odd judgment.  Certainly, the Westboro Baptist Church does not think its speech was mere rhetorical overkill.  Irreverent?  As distasteful as the church’s language might be to others, its message is the heart—and, I suppose, the soul—of the church.  This is a church that finds reverence in outrageousness.

Personally abusive speech directed toward a private target held hostage by special circumstances—this is not the type of speech that has merited immunity from tort liability.  To find that such speech is constitutionally protected would not foster the robust debate sought by the Fourth Circuit.  Rather, by protecting the personal vilification of private individuals, such immunity would work against a civic order where all people are equally free to express their deepest beliefs.  That freedom, like all freedoms, has it limits.  In granting certiorari in Snyder v. Phelps, the Supreme Court may help us better understand the limits of religious advocacy.

[1] Snyder v. Phelps, 2010 WL 757695 (U.S. March 08, 2010).

[2] Snyder originally brought suit on five counts: defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy.  Snyder v. Phelps, 533 F. Supp. 2d  567 (D. Md. 2008).  The district court granted defendants’ motions for summary judgment on the claims for defamation and publicity given to private life.  Id. at 572-73.  The court held, however, that the remaining claims raised genuine issues of material fact.  Id. at 573.

[3] Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2008).

[4] See id. at 227-33 (Shedd, J., concurring in the judgment).

[5] Id. at 224.

[6] Id. Similarly, the court concluded that “the written Epic published on the website of the Church is also protected by the First Amendment, in that a reasonable reader would understand it to contain rhetorical hyperbole, and not actual, provable facts about Snyder and his son.”  See id.

[7] Hester v. Barnett, 723 S.W.2d 544, 559 (Mo. Ct. App. 1987).

[8] Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940).  See id. at 309 (“One may, however, be guilty of [breach of the peace] if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended.  Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer.”) (emphasis added); cf. Cohen v. California, 403 U.S. 15, 20 (1971) (“While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not ‘directed to the person of the hearer.’”) (quoting Cantwell, 310 U.S. at 309).

[9] The district court concluded that it was Defendants who thrust the Snyder family into the unwelcome glare of national media coverage, “transform[ing] a private funeral into a public event.”  Snyder v. Phelps, 533 F. Supp. 2d 567, 577 (D. Md. 2008).  The fact that Matthew’s funeral attracted public attention does not make him a public figure. “A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.”  Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 167 (1979).  Defendants’ reasoning would in effect nullify the Supreme Court’s precedents that establish the contours of the public figure doctrine.  See Time, Inc. v. Firestone, 424 U.S. 448 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); cf. St. Luke Evangelical Lutheran Church v. Smith, 537 A.2d 1196, 1202-04 (Md. Ct. Spec. App. 1988) (plaintiffs objection to pastor at church meeting does not render her a public figure) (citing Gertz and Firestone). If there is no evidence that Matthew or his family assumed a prominent role in public controversy, see Gertz., 418 U.S. at 351, or that the Snyders sought to use Matthew’s funeral “as a fulcrum to create public discussion,” see Wolston, 443 U.S. at 168, the district court rightly rejected Defendants’ attempt to “bootstrap their position by arguing that Matthew Snyder was a public figure,” Snyder, 533 F. Supp. 2d at 577.

[10] When speech is forced upon “an audience incapable of declining to receive it,” Lehman v. City of Shaker Heights, 418 U.S. 298, 307 (1974) (Douglas, J., concurring), the Court has not hesitated to uphold the regulation of expressive activity.  See Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women’s Health Ctr., 512 U.S. 753 (1994); Frisby v. Schultz, 487 U.S. 474 (1988); F.C.C. v. Pacifica Found., 438 U.S. 726 (1978); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974); Rowan v. United States Post Office Dep’t, 397 U.S. 728 (1970); Kovacs v. Cooper, 336 U.S. 77 (1949); Packer Corp. v. Utah, 285 U.S. 105 (1932); cf. Cohen v. California, 403 U.S. 15, 21 (1971) (persons confronted with defendant’s jacket bearing the words “Fuck the Draft” could have avoided “further bombardment of their sensibilities simply by averting their eyes”); Collin v. Smith, 578 F.2d 1197, 1207 (7th Cir. 1978) (residents could “simply avoid” Nazi-affiliated party protest activities).  If there are places outside the home where we need not be held hostage to verbal confrontation, the setting where we mourn the dead certainly must be one of them.

[11] See Jones v. Wolf, 443 U.S. 595, 606 (1979); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976); Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969); Kedroff v. St. Nicholas Cathedral of Russian Orthodox in N. Am., 344 U.S. 94, 116 (1952); Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16-17 (1929).

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By Elizabeth Thornburg.  114 Penn St. L. Rev. Penn Statim 1.

Published January 20, 2010.  View as PDF.

Preferred citation:  Elizabeth Thornburg, Law, Facts, and Power, 114 Penn St. L. Rev. Penn Statim 1 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 1.pdf.

Abstract:

The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways.  This essay is about only one of them:  the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law.  This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction.  The chinks in the law-fact divide are evident in Iqbal itself—both in the already notorious pleading section of the opinion, and in the much-less-noted section on whether the Court even had jurisdiction over the case, which also turned on the distinction between law and fact.  Iqbal further demonstrates the power issues that lurk below the “law” and “fact” labels.  The Court’s misuse of the law/fact divide allocates authority to judges rather than juries, and gives appellate judges the power to review those decisions with no deference to the trial court.  In addition, by using a case to change the long-established interpretation of a procedure rule, Iqbal allowed the Supreme Court itself to avoid the transparent and participatory process for amending the Federal Rules of Civil Procedure, and altered the balance of power between the Court and Congress.

Law, Facts, and Power

“There is no logical distinction between statements which are grouped by the courts under the phrases ‘statements of fact’ and ‘conclusions of law’.” – Walter Wheeler Cook (1921)

“[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” – Justice Anthony Kennedy (2009).

I.          Introduction

In May of 2009, the U.S. Supreme Court decided Ashcroft v. Iqbal.[1] In the context of a claim arising out of detentions of Arab Muslim men in the immediate aftermath of the September 11th attacks, the Court announced sweeping changes in its interpretation of the rules governing pleadings.[2] Without actually amending the rules, without the advice of the Advisory Committee on the rules, and despite the opinion below[3] – written by some of the most respected and politically diverse judges on the Second Circuit[4] – the Court formalized a new approach to evaluating the sufficiency of a plaintiff’s complaint and the relationship between pleadings and discovery.

In a déjà vu sort of way, the Court returned us to a world in which facially possible (no “little green men,” trips to Pluto, or time travel[5]) but very general allegations don’t count.  Here are the new marching orders for federal judges:  1) Identify allegations that are merely “conclusions of law” or “conclusory.”  Ignore them; 2) Take any remaining allegations as true, but if they are circumstantial – as they often will be, especially when “conclusory” statements are disregarded – look to see if they support a “plausible” inference that the plaintiff might be able to prevail.  To be “plausible” in this sense, it must be at least as likely as other competing inferences, decided based on the judge’s own experience and common sense.[6] If the pleaded circumstantial evidence is not sufficient, Iqbal instructs the trial judge to dismiss the case without allowing discovery.

The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways.  This essay is about only one of them:  the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law.  This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction.  The chinks in the law-fact divide are evident in Iqbal itself—both in the already notorious pleading section of the opinion, and in the much less noted section on whether the Court even had jurisdiction over the case, which also turned on the distinction between law and fact.  Iqbal further demonstrates the power issues that lurk below the “law” and “fact” labels.  The Court’s invocation of “it’s all just law” allocates authority to judges rather than juries, and gives appellate judges the power to review those decisions with no deference to the trial court.  In addition, by using a case to change the long-established interpretation of a procedure rule, Iqbal allowed the Supreme Court itself to avoid the transparent and participatory process for amending the Federal Rules of Civil Procedure, and altered the balance of power between the Court and Congress.

II.        The Lessons of History:  Law, Facts, Angels and Pinheads

While each generation of lawyers may spend its time trying to correct the mistakes of the previous generation, it should not do so by returning to the errors of its grandparents’ generation. The fruitless quest for the perfect pleading only of operative facts – not “legal conclusions,” and not “evidence” – was abandoned in the 1930s for multiple reasons.  From a utilitarian perspective, it bred countless inefficient motions and orders and appeals about the sufficiency of pleadings, consuming time and money without much systemic benefit.  And from a jurisprudential perspective, the advent of legal realism demonstrated that the distinction was ephemeral.  One could as easily calculate how many angels can dance on the head of a pin[7] as explain whether — for example — pleading that something constituted “valuable consideration” or that the defendant was “negligent” or that “B owes A $500” was a question of law or a question of fact.[8]

The instincts of the drafters of the Federal Rules of Civil Procedure on this issue have been confirmed by modern developments in cognitive science and its impact on further philosophical debate about the law-fact divide.  It is theoretically possible to distinguish fact from law by defining fact as “a reality that exists independently of its acknowledgment by the conscious mind of a perceiver.”[9] However, the legal system must operate within the limits of human language — the testimony of those perceivers — and people think and speak in terms of categories.[10] Consider, for example, the comments of the drafters of the Federal Rules of Evidence regarding the conclusions that are embedded in everyday language, which they referred to as “non-evidence facts”:

Every case involves the use of hundreds or thousands of non-evidence facts.  When a witness in an automobile accident case says “car,” everyone, judge and jury included, furnishes from non-evidence sources within himself, the supplementing information that the “car” is an automobile, not a railroad car, that is self-propelled, probably by an internal combustion engine, that it may be assumed to have four wheels with pneumatic rubber tires, and so on.[11]

“Car,” then, is a conclusion.  “Speeding” is a conclusion, as is “careless,” as is “negligent.”  To label some of these conclusions as “law” and some as “fact” is an arbitrary exercise, the choice of a point along a continuum of specificity at which something fairly general is labeled a conclusion, something fairly specific a fact, and something in between a mixed question of law and fact.  While commentators disagree about whether, at a philosophical level, there is a qualitative or ontological distinction between law and fact, there is a strong consensus that the distinctions courts draw are governed by policy rather than logic, and that they are not clearly and predictably drawn.[12]

Because there is no clear line between questions of law and questions of fact, court decisions that turn on the distinction are a morass of inconsistency.  Despite sincere attempts to develop clear and predictable lines of precedent, cases differ for reasons that cannot be explained by some kind of inherent difference between an “ultimate fact” and a “conclusion of law,” especially in the huge realm of mixed questions of law and fact.  It should not be surprising, then, that the old code pleading cases forced to make those decisions generated thousands of cases but little clarity.[13]

Negligence cases provide examples of where an insistence on disregarding “legal conclusions” could lead.  Many jurisdictions required quite specific allegations of factual theories of negligence, but permitted the pleader to characterize those allegations as negligently done, “and that characterization [was] held to show the breach of duty to plaintiff.”[14] Other jurisdictions – and this is apparently where Iqbal directs us – held that the word “negligent” adds nothing, and should be ignored.  One case following that pattern found that

an averment that the persons in charge of a locomotive engine carelessly and negligently and without giving warning ran it at a reckless and high rate of speed upon a switch track where the plaintiff was at work, and negligently and carelessly disconnected a freight car therefrom, leaving it to run with great force against other cars on the track and forced them against the plaintiff

did not adequately allege a duty to the plaintiff, because the conclusory terms “negligently” and “carelessly” were legal conclusions rather than facts.[15]

The Court was not unaware of this documented historical confusion.  Justice Stevens invoked it specifically in his dissent in Iqbal’s precursor, Bell Atlantic Corp. v. Twombly.[16] Why, then, return to those problematic concepts?  Perhaps Justice Kennedy and the majority really believe that courts can distinguish in a disciplined and consistent manner between conclusions of law – which are to be ignored – and statements of facts – which are evaluated to see whether they raise a plausible inference of defendant’s breach of duty.  If they believe this, however, they are choosing hope over experience.  History – decisions from the code pleading era as well as the Court’s own efforts – demonstrates that attempts to label various issues as law or fact are destined to fail.  The Supreme Court itself, in other contexts, has confessed that the law-fact distinction is problematic, calling it “elusive,” “slippery,” and “vexing.”[17] Its efforts, for example, have resulted in anomalies such as these:

• Damages:  the excessiveness of punitive damages is a question of law, while the amount of compensatory damages is a question of fact.[18]

• State of Mind:  the issue of actual malice in a defamation case is a question of law, as is the issue of voluntariness of a confession, while the issue of intent to discriminate is a question of “ultimate fact.”[19]

• Fact Issues Treated Like Law:  the issue of whether a suspect is “in custody” (a “mixed question of law and fact qualifying for independent review”) and whether a movie is “patently offensive,” and thus pornographic (“essentially questions of fact”)[20] get de novo review, which means that they are labeled as fact issues but treated as questions of law.

III.       Ashcroft v. Iqbal as Evidence of Confusion

Even if we lacked this convincing history of dysfunction, Justice Kennedy’s own opinion in Iqbal is Exhibit A for the absolute un-workability of the law-fact distinction.  The incoherence is clear not only in the better-known portion of the opinion, the one dealing with the sufficiency of Iqbal’s complaint.  It is also clear in another section of Iqbal itself – the one explaining why the court has jurisdiction to review this interlocutory order.  The language of the majority opinion creates illusory boxes of law and fact.

A.        Legal Conclusions in the Complaint

Justice Kennedy’s opinion parses the plaintiff’s complaint and, viewing each allegation in isolation, holds that the following are mere conclusions that must be disregarded:

1)  Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject” Iqbal to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.”

2)  Ashcroft was the “principal architect” of this policy.

3)  Mueller was “instrumental in the adoption, promulgation and implementation” of the policy.

These, on the other hand, were allegations of fact:

1)  The FBI, “under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11.”

2)  The “policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.”

The four dissenting Justices (Souter, Ginsberg, Stevens, and Breyer) disagree.  They look at the complaint as a whole, and, considered in context, read Iqbal’s complaint as alleging quite specific facts that provide adequate notice to the defendants and adequate shape to the lawsuit.  In addition, the dissent points to inconsistencies in Justice Kennedy’s decisions about what is law and what is fact:  “the majority’s holding that the statements it selects are conclusory cannot be squared with its treatment of certain other allegations in the complaint as nonconclusory.”[21] Why are the first three allegations numbered above just legal conclusions, while the last one is an allegation of fact?  Nine justices.  Five vote legal conclusion.  Four vote factual allegation.  This is not an indicator of a clear line of demarcation.

B.        Interlocutory Appeal

The first part of Justice Kennedy’s decision has been less noted, as it concerns the less sexy question of whether the district court order refusing to dismiss the complaint against Ashcroft and Mueller was appealable.  It was certainly not a final order in the normal sense, and so an exception was required to allow an interlocutory appeal:  the collateral order doctrine.  In the context of cases suing government officers who defend themselves based on a claim of qualified immunity, Supreme Court case law allows an interlocutory review of orders refusing to dismiss on immunity grounds, so long as the issue is a question of “law.”[22]

Cases that the Court had reviewed under this exception in the past looked at the plaintiff’s pleadings to see whether the complaint alleged a violation of a clearly established law.  They thus involved an analysis of a legal proposition and its fit with the facts as alleged.[23] They did not involve a question of the factual specificity of those allegations.  However, the Court had also found interlocutory review unavailable in a case arguably more like Iqbal.  In Johnson v. Jones,[24] the Court refused to allow immediate review of the denial of motion for summary judgment.  Johnson was based on an allegation that five police officers had beaten the plaintiff, and the trial court had refused summary judgment because it found a genuine issue of material fact as to whether three of the defendants participated in the beating.  As noted above, the special interlocutory appeal rule only applies to questions of law.  However, a decision about whether there is a question of fact for the jury[25] is defined as a question of law, so the Johnson appeal should have satisfied the “question of law” requirement.  In Iqbal, Justice Kennedy explains the Court’s refusal to take the Johnson case like this:  “Though determining whether there is a genuine issue of material fact at summary judgment is a question of law, it is a legal question that sits near the law-fact divide. Or as we said in Johnson, it is a ‘fact-related’ legal inquiry.”  So it turns out that fact issues sometimes infiltrate questions of law, and collateral orders are only final if they involve “abstract” rather than “fact-related” issues of law.[26]

The Court then had to apply the “abstract” vs. “fact-related” question of law analysis to the lower court’s refusal to dismiss in Iqbal.  Justice Kennedy concedes that “the categories of ‘fact-based’ and ‘abstract’ legal questions used to guide the Court’s decision in Johnson are not well defined.”[27] Nevertheless, he found it easy to distinguish Johnson from Iqbal:  the former required the examination of a “vast pretrial record,” while the latter considered only allegations within the “four corners of the complaint.”  Why that difference makes one more fact-ish[28] than the other, the opinion does not explain.[29]

It is unlikely that one could frame a convincing explanation of why facts in a complaint are different from facts in a larger record.  Yet by returning to the pre-legal realist world view in which facts and law are conceptually and functionally distinct, the Court has forced lawyers and judges to draw these lines in every case.  It is no accident that six months after Iqbal was decided it had been cited by courts 3312 times.  Uncertainty breeds litigation.  And no one should find that to be a surprise.

IV.       The Law-Fact Distinction Adopted by Iqbal is a Judicial Power-Grab

Why, given the problems apparent from history and from Iqbal itself, is the court going down this road?  In a word:  power.  In slightly more words, three kinds of power:  the power of judges over juries; the power of appellate judges over trial judges; and the power of the Supreme Court itself over Congress and the Advisory Committee on the Federal Rules of Civil Procedure.  While talking about fact and law, the Court is aware that this distinction is actually about the allocation of authority to decide.

In the past, when discussing the law-fact divide, the Court has at times pulled aside the curtain and revealed the real issue underlying its decisions.  The real question is not the nature of the issue but the choice of preferred decision-maker.  For example, in explaining why the voluntariness of a confession is a question of law, not fact, the Court noted that “the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.”[30]

To illustrate the point, it helps to consider some of the contexts in which courts have identified particular questions as “law,” despite the questions being quite fact-intensive.  Sometimes they do so to give more power to the court of appeals than to the trial court.[31] For example, in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., the Supreme Court held that the issue of whether a punitive damage award is excessive is a legal rather than a factual question, and so appellate courts should use a de novo standard of review rather than a standard that is deferential to the jury.[32] And while the Court attempted (unconvincingly) to explain why punitive damage decisions based on moral condemnation and deterrence are not really factual, its real point was to assign the final decision about punitive damages to appellate courts.  In a similar way, the Court has treated certain kinds of facts in constitutional litigation – so-called “constitutional facts” – as if they were law, so they can be reviewed de novo.[33] As Judge Easterbrook once explained, “That admixture of fact and law, sometimes called an issue of ‘constitutional fact,’ is reviewed without deference in order to prevent the idiosyncrasies of a single judge or jury from having far-reaching legal effects.”[34]

In other cases, issues are defined as “law” in order to allocate decisional power to the judge rather than the jury.  In patent litigation, for example, the Supreme Court has decreed that the question of the scope of the claim is a question of law, even though it involves drawing factual inferences from extrinsic evidence.[35] The reason, again, is not a logical consideration of the difference between law and fact, but a decision that, for policy reasons, judges rather than juries are better equipped to make the decision, and because uniformity is desirable.[36]

Both of Justice Kennedy’s law-fact discussions in Iqbal fit this power allocation model.   The two-step analysis of pleading sufficiency puts both steps in the “law” category.  The sorting of the complaint’s allegations into law and fact boxes is a question of law.  The decision about whether the factual allegations, taken as true, support a “plausible” inference is also a question of law.  Therefore, the judge rather than the jury will make these decisions.  If the case is appealed, the review of the trial judge’s decision about the pleadings will be reviewed as a question of law:   de novo, with no deference to the trial judge.  The majority’s magic trick has thus privileged judges over juries,[37] appellate judges over trial judges, and put the Court firmly at the top of the heap.[38] The same results flow from Justice Kennedy’s placement of pleading issues in the “abstract” rather than “fact based” category of legal issues.  Appellate courts get to police the trial courts’ decisions, and get to do so immediately even when the trial judge refused to dismiss (and without the work of actually considering information revealed by discovery).  It is based on concerns about power and efficiency, not about how close to the “fact” line a legal issue strays.

Institutionally, adopting a radical change in the interpretation of the Federal Rules of Civil Procedure[39] through the decision of a case also bypasses the normal collaborative process through which rules are made.[40] Congress has the power, under Article III of the Constitution and the Necessary and Proper Clause, to make rules of practice and procedure for the federal district courts.  By passing the Rules Enabling Act, Congress delegated that power to the court, and later legislation creates a committee structure and a process for adopting and amending rules.  This process, however, is time-consuming.  It involves committees whose membership is meant to represent various constituencies within the bar, as well as federal judges from various levels of courts.  In recent times, it also involves empirical research designed to test the need (if any) for change and the merits of possible solutions.  Proposed rules will be published, posted on the courts’ website, written comments solicited and hearings held.  As the proposals move through the process, committees may delay decision or make changes.  Ultimately the proposal goes to Congress, which may if it wishes change or reject it.  The Court’s only role is to pass the proposal along to Congress, and in the past it has done so routinely so long as the correct process was followed.  The Court thus has very little direct control over the content or timing of changes in the rules.

If the majority of the Court has been hoping for a change in the existing complaint-discovery relationship, they had another source of frustration:  the Rules Advisory Committee has chosen not to do so several times already.[41] Even if the committee, whose members are appointed by the Chief Justice, becomes more sympathetic to such changes, it would be at least two to three years before any resulting changes in the rules would become effective.[42] Nor, except in the context of securities fraud claims, has Congress chosen to increase the burden of pleading by requiring heightened specificity or returning Rule 11 sanctions to their pre-1993 strength.[43] If the Court wanted action, it had to take matters into its own hands.[44]

Considered from this perspective, invoking the old code pleading concept of the conclusion of law is like waving a magic wand.  “Imperio,” as a wizard in a Harry Potter book would say, and the judges have full control.  Without using empirical research about the prevalence of frivolous claims or the actual expense of discovery in most cases, or bipartisan input, or public notice and comment, the Court has handed federal judges up and down the line a powerful tool to stop lawsuits in their tracks.

Even those who think this is a good idea should worry about the device (the law-fact incantation) that Justice Kennedy has chosen for the purpose.  First, it is logically the wrong one:

there is no algorithm for generating correct conclusions about which is which, and so the courts muddle along attempting to rationalize a process whose primary purpose is allocative in terms of the nature of the entities.  There is thus a mismatch between task and tool, leading to the perfectly predictable sense of chaos surrounding the matter.[45]

Second, it is extremely inefficient – a powerful but muddy doctrine creates incentives to file motions to dismiss in most cases, and dealing with those motions will require significant time and expense from courts and litigants.  Third, because decisions will talk about one issue (law/fact) but really deal with another (balancing access to justice against the cost of litigation), no clarity can result either pragmatically or ideologically.  It was a bad idea the last time, it’s a bad idea now, and – ironically – Iqbal proves it.

---

[1] 129 S. Ct. 1937 (2009).

[2] Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), began the process but Iqbal confirmed that the Court’s changes are generally applicable and reduced a vaguer plausibility test into a two-jump hurdle that all plaintiffs must clear.

[3] Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007).

[4] Id. The panel consisted of Judges Newman, Cabranes & Sack.

[5] Iqbal, 129 S. Ct. at 1960 (Souter, J., dissenting).

[6] Twombly, 550 U.S. at 567; Iqbal 129 S. Ct. at 1950, 1951.

[7] Richard Baxter, The Reasons of the Christian Religion 530 (1667) (“And Schibler with others, maketh the difference of extension to be this, that Angels can contract their whole substance into one part of space . . . Whereupon it is that the Schoolmen have questioned how many Angels may sit upon the point of a Needle?”).  The scholastic philosophers were not, of course, actually trying to count angels but to train students in abstract reasoning.  Similarly, Justice Kennedy’s opinion assumes that abstract reasoning can lead judges to distinguish between law and fact, or conclusory and non-conclusory assertions.  See Ryan Patrick Alford, How Do You Trim the Seamless Web:  Considering the Unintended Consequences of Pedagogical Alterations, 77 U. Cin. L. Rev. 1273, 1293-94 & n.98 (2009).

[8] See Walter Wheeler Cook, Statements of Fact in Pleading Under the Codes, 21 Colum. L. Rev. 416, 416 (1921) (pointing to split between appellate courts on the issue).

[9] Gary Lawson, Proving the Law, 86 Nw. U. L. Rev. 859, 866 (1992).

[10] Richard D. Friedman, Standards of Persuasion and the Distinction Between Fact and Law, 86 Nw. U. L. Rev. 916, 917-20 (1992) (responding to Lawson).

[11] Advisory Committee Notes to Federal Evidence Rule 201, citing Kenneth  Davis, A System  of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69, 73 (1964); Levin and Levy, Persuading the Jury with Facts Not in Evidence:  The Fiction-Science Spectrum, 105 U. Pa. L. Rev. 139 (1956).  See also Thayer, Preliminary Treatise on Evidence 279-80 (1898) (“In conducting a process of judicial reasoning, as of other reasoning, not a step can be taken without assuming something which has not been proved; and the capacity to do this with competent judgment and efficiency, is imputed to judges and juries as part of their necessary mental outfit.”)

[12] See, e.g., Ronald J. Allen & Michael S. Pardo, The Myth of the Law-Fact Distinction, 97 Nw. U. L. Rev. 1769, 1770 (2003); Henry P. Monaghan, Constitutional Fact Reviews, 85 Colum. L. Rev. 229 (1985).

[13] Cook, supra note 8, passim.

[14] Charles E. Clark, Pleading Negligence, 32 Yale L.J. 483, 486 (1922-23).

[15] Chicago & Erie Ry. v. Lain, 83 N.E. 632 (Ind. 1907).  Flash forward and compare Branham v. Colgencorp., Inc., No. 6:09-CV-00037 (W.D. Va. 2009) (dismissing slip and fall case because plaintiff failed to allege how the liquid came to be on the floor, whether the defendant knew or should have known of its presence, and how the plaintiff’s accident occurred, citing Twombly and Iqbal).

[16] 550 U.S. 544, 573-76 (2008) (Stevens, J., dissenting).

[17] Miller v. Fenton, 474 U.S. 104 (1985) (distinguishing the legal and factual matters with regard to whether a confession was voluntarily given); Thompson v. Keohane, 516 U.S. 99 (1995) (analyzing law-fact divide in a habeas corpus case); Pullman-Standard v. Swint, 456 U.S. 273 (1982) (considering whether intent to discriminate is an issue of law or fact).

[18] Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001).

[19] Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984); Miller, 474 U.S. at 110; Pullman-Standard, at 286-88.

[20] Thompson, 516 U.S. at 102; Jenkins v. Georgia, 418 U.S. 153, 160 (U.S. 1974).

[21] Iqbal, 129 S. Ct. at 1961 (Souter, J., dissenting).

[22] Mitchell v. Forsyth, 472 U.S. 511, 526 (1985);

[23] Hartman v. Moore, 547 U.S. 250 (2006) (considering the elements of a retaliation claim); Wilkie v. Robbins, 551 U.S. 537 (2007) (deciding whether a Bivens claim can grow out of property rights).

[24] 515 U.S. 304 (1995).

[25] This, of course, is another example of the strangeness of the law-fact distinction.  Decisions about whether or not there is sufficient circumstantial evidence from which the jury could draw the inference required by the plaintiff look suspiciously like factual decisions.

[26] Iqbal, 129 S. Ct. at 1947.

[27] Id.

[28] Cf. “truthy,” the satirical watchword of political punditry on The Colbert Report (Comedy Central).

[29] It can be explained, though, as an efficiency-based decision about interlocutory appeal.  See section IV, infra.

[30] Miller, 474 U.S. at 114.

[31] See Martin B. Louis, Allocating Adjudicative Decision Making Authority Between Trial and Appellate Levels: A Unified View of the Scope of Review, the Judge/ Jury Question, and Procedural Discretion, 64 N.C. L. Rev. 993 (1986).  See also Kevin Clermont, Jurisdictional Fact, 91 Cornell L. Rev. 973, 990 n.59 (2006) (discussing artificial nature of the law-fact line in review of jurisdictional fact).

[32] Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001).

[33] See Norris v. Alabama, 294 U.S. 587, 589-91 (1935).

[34] A Woman’s Choice-East Side Women’s Clinic v. Newman, 305 F.3d 684, 689 (7th  Cir. 2002) (explaining basis for de novo review of a district court’s finding based on empirical studies that a state abortion law would create an undue burden).  The doctrine of constitutional fact apparently derived from that of jurisdictional fact, a concept that allowed de novo review of facts on which the court’s power depended.  See Crowell v. Benson, 285 U.S. 22 (1932).

[35] Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996).

[36] Id. at 388-91.

[37] See Suja A. Thomas, The New Summary Judgment Motion:  The Motion to Dismiss Under Iqbal and Twombly, available at http://ssrn.com/abstract=1494683 (2009).

[38] Judging from the oral arguments in Iqbal, part of the Court’s rejection of managing discovery rather than dismissing cases comes from some Justices’ distrust of trial judges.  See Ashcroft v. Iqbal, Transcript at 50, 61.

[39] Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, available at http://ssrn.com/abstract=1448796 (2009).

[40] See Peter G. McCabe, Renewal of the Federal Rulemaking Process, 44 Am. L. Rev. 1655 (1995) (describing evolution of rulemaking process).

[41] See, e.g., See Judicial Conference of the United States, Minutes of the Advisory Committee on Civil Rules 17-18 (May 3-5, 1993) (discussing the possibility of heightened pleading requirements for certain types of cases); Judicial Conference of the United States, Advisory Committee on Civil Rules, Draft on Particularized Pleading (Sept. 17, 1993) (suggesting a variety of possible amendments to Rules 8 and 9 to magnify their requirements); Judicial Conference of the United States, Minutes of the Advisory Committee on Civil Rules 5-8 (Oct. 21-23, 1993) (continuing the discussion of possible amendments to restore heightened pleading requirements); Judicial Conference of the United States, Minutes of the Advisory Committee on Civil Rules 17-18 (Apr. 20, 1995) (discussing but rejecting at that time heightened pleading requirements).

[42] McCabe, supra note 41 at 1671-72.

[43] The Private Securities Litigation Reform Act, Pub. L. No. 104-67, 109 Stat. 737 (Dec. 22 1995), did adopt heightened pleading requirements for securities fraud claims.  However, other legislation failed to pass.  See, e.g., Lawsuit Abuse Reduction Act, H.R. 420, 109th Cong. (2005) (proposing amendments to Rule 11 that would apply in both federal and state court); Stop Trial Lawyer Pork Act, H.R. 7080, 110th Cong. (2008).

[44] Some see this decision as part of a larger movement by the Court to chip away at the power of Congress.  See Simon Lazarus, “Congress Pushes Back as Supreme Court Oversteps,” Roll Call (Nov. 17, 2009) (also citing decisions regarding political contributions, proof of age discrimination, and arbitration clauses).

[45] Allen & Pardo, supra note 11 at 1806.

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