Penn State Law Review is pleased to announce a special guest as part of its Scholarly Dialogues series.  Donald J. Langevoort, Thomas Aquinas Reynolds Professor of Law at Georgetown University Law Center, will present his working paper, Reading Stoneridge Carefully:  A Duty-Based Approach to Reliance and Third Party Liability under Rule 10b-5.  This event will occur on Wednesday, March 24, 2010, from 1:15 to 2:15 p.m., in 112 Katz Building (University Park), and will be simulcast to 112 Katz Hall (Carlisle).

Professor Langevoort is a pre-eminent scholar in the field of Securities Law.  He is the author or co-author of dozens of scholarly articles and book chapters on the subject, and several books, including Securities Regulation: Cases and Materials, a leading textbook on the subject, which is currently in its sixth edition.

Professor Langevoort’s paper examines Stoneridge Investment Partners LLC v. Scientific-Atlanta, Inc., a recent U.S. Supreme Court case in the field of Securities Law.  Professor Langevoort argues that, rather than an expression of the Court’s “reflexive antipathy toward private securities class actions, throwing whatever was at hand into the pot to suit the business-friendly result,” the opinion in Stoneridge represents a more measured approach.  Professor Langevoort argues that “in its emphasis on remoteness and attenuation applied solely in the context of private securities litigation, Stoneridge reinvigorates duty as a limitation on liability to open market investors in order to constrain the unique liability risk that defendants face.”

Following Professor Langevoort’s presentation, Dominic Rupprecht, Penn State Law Review Articles Editor, will dialogue with Professor Langevoort concerning the substance of his article.  Then, the event will be opened up for a public question-and-answer period.  Refreshments will be provided.

Everyone is cordially invited to attend this event. Published four times annually, Penn State Law Review is the flagship law review for the Dickinson School of Law of the Pennsylvania State University. It has existed since 1897 and promotes sound legal scholarship.

This event is supported by funds from the Speaker’s Trust Fund of the Student Bar Association.

Penn State Law Review hosted a Scholarly Dialogue with Professor of Law Nancy Welsh on Thursday, February 25, 2010.  Professor Welsh, of the Penn State Dickinson School of Law, presented her forthcoming article “What Is ‘(Im)Partial Enough’ in a World of Embedded Neutrals?”   Professor Welsh’s work discussed the role of “embedded neutrals” who may have an affiliation with only one of the parties in an alternative dispute resolution situation.   Jena Piazza, Associate Editor of the Penn State Law Review, dialogued with Professor Welsh, followed by a public question and answer period.  [watch video]

Penn State Law Review held a Scholarly Dialogue with Professor Kramer on Monday, February 8, 2010.

This Dialogue featured Zachary A. Kramer, Assistant Professor of Law, as he presented his work, “Heterosexuality and Military Service.”

Professor Kramer’s work makes two distinct contributions to the scholarly literature. First, it provides a new way of approaching the issue of gay military service. To date, the issue of gay service has been debated primarily in terms of whether the presence of openly gay service members would hinder military effectiveness. This paper breaks from this trend by steering the conversation away from sexual orientation—and, in particular, homosexuality—and refocusing it on sexual conduct. Secondly, it makes a stand-alone contribution to the growing field of what scholars are calling “critical heterosexual studies” (CHS). Stephanie K. Savino, of the Penn State Law Review, dialogued with Professor Kramer. [watch video]

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.

[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.

Elizabeth Thornburg is a Professor of Law at the SMU Dedman School of Law in Dallas, Texas.  She teaches and writes in the area of civil procedure and alternative dispute resolution. Drawing on her experience with civil rights and commercial litigation, her scholarship focuses on the procedural fairness of the litigation process, especially at the pleadings, discovery, and jury charge stages.  She also writes and speaks in the areas of comparative procedure, online dispute resolution, and the intersection of law and culture.

Author of:

Law, Facts, and Power.  114 Penn St. L. Rev. Penn Statim 1.

Penn State Law Review held a Scholarly Dialogue on Thursday, January 28 with Victor C. Romero.

This Dialogue featured Victor C. Romero, Maureen B. Cavanaugh Distinguished Faculty Scholar and Professor of Law, as he presented his work, “Of Hope and Humility:  Christian Realism, Immigration Reform, and Executive Leadership.”   Drawing upon President Barack Obama’s admiration of Reinhold Niebuhr’s work, Romero’s work outlines a Protestant, Christian realist approach toward immigration policy, with specific focus on the role of the executive in providing providential leadership.  He discussed various aspects of such leadership, from negotiating the proper role of states and localities to the promotion of comprehensive immigration reform.  Alexis Snyder, Managing Editor of the Penn State Law Review, dialogued with Professor Romero about the substance of his article, followed by a public question and answer period.  [watch video]

By Mark R. Brown. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)

This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at:

• Ph: 614-236-6590
• Fx: 614-236-6956
• mbrown@law.capital.edu

Abstract:

In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Court held that a district court decision denying defendants’ motion to dismiss “turned on an issue of law and rejected the defense of qualified immunity,” and was therefore immediately appealable under the collateral order doctrine that has been applied to purely legal questions tied into denials of qualified immunity.  See Mitchell v. Forsyth, 472 U.S. 511 (1985). The Supreme Court in Iqbal rejected the plaintiff’s contention that “a qualified immunity appeal based solely on the complaint’s failure to state a claim”—rather than on the “ultimate” qualified immunity issue whether the acts allegedly committed by the defendants constituted a violation of clearly established law—“is not a proper subject of interlocutory jurisdiction.”  “[A]ppellate jurisdiction is not so strictly confined,” the Court concluded.

The Court distinguished its previous decision in Johnson v. Jones, 515 U.S. 304 (1995), noting that “[t]he concerns that animated the decision in Johnson are absent when an appellate court considers the disposition of a motion to dismiss a complaint for insufficient pleadings.”  Although the Iqbal Court acknowledged that “the categories of ‘fact-based’ and ‘abstract’ legal questions used to guide the Court’s decision in Johnson are not well defined,” it thought that the decision to deny the defendants’ motion to dismiss “falls well within the latter class.”  The Court reasoned that the case required an appellate court to “consider[] only the allegations contained within the four corners of [the plaintiff’s] complaint,” and that the decision whether a complaint “has the ‘heft’ to state a claim is a task well within an appellate court’s core competency.”  “Evaluating the sufficiency of a complaint is not a ‘fact-based’ question of law,” the Iqbal Court concluded, and therefore “the problem the Court sought to avoid in Johnson is not implicated here.”

The Supreme Court took a similar approach in Scott v. Harris, 127 S. Ct. 1769 (2007), a case involving a high-speed chase that resulted in serious injury to the victim. The District Court there refused to award qualified immunity to police because of many factual matters in dispute.  The Eleventh Circuit affirmed, finding that it did not have interlocutory jurisdiction over facts.  After viewing videos of the chase and ramming—which were produced by deputies whose cameras automatically filmed the events—Justice Scalia concluded for the Court that the deputies’ force was not excessive within the meaning of the Fourth Amendment.  In reaching this conclusion, Justice Scalia implicitly modified the holding in Johnson v. Jones: “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”  Id. at 1776.  “[Harris’s] version of events is so utterly discredited by the record that no reasonable jury could have believed him.  The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.”  Id.

What do Scott and Iqbal do to Johnson v. Jones and its limit on interlocutory appellate fact-finding? The Circuits following Johnson had uniformly eschewed fact-finding on interlocutory appeal because jurisdiction was lacking.  In Hulen v. Yates, 322 F.3d 1229 (10^th Cir. 2003), for example, where a District Court had denied summary judgment to a defendant who allegedly violated the First Amendment by transferring a public-sector employee, the Tenth Circuit stated that it could “not resolve Defendants’ claims that [the plaintiff] cannot show any personal participation by these Defendants in the alleged retaliatory transfer because of his motivation. This is an issue of evidentiary sufficiency, over which we lack jurisdiction in a qualified immunity interlocutory appeal.”  Similarly, in Hamilton v. Leavy, 322 F.3d 776, 782 (3d Cir. 2002), a case involving deliberate indifference to a prisoner’s Eighth Amendment rights, the Third Circuit refused to review “the District Court’s ‘identification of the facts that are subject to genuine dispute,’ but instead … review[ed] the legal issues in light of the facts that the District Court determined had sufficient evidentiary support for summary judgment purposes.”

Scott has been given a limited reach by the Courts of Appeals.  Most have concluded that it is limited to cases that have video—something that can easily and conclusively prove the facts of a case.  Iqbal now suggests that a broader exception to Johnson v. Jones. If true, it may be that appellate interlocutory fact-finding in the context of qualified immunity is ordinarily appropriate.  And if this is the case, qualified immunity will (unfortunately) prove more common in the future.

By Shoba Wadhia. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)

This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at:

• E-mail: ssw11@psu.edu
• Phone: (814) 865-3823

Abstract:

While the impact of the Iqbal decision on notice-pleading standard is striking, its effects on the permissiveness of selective enforcement policies against foreign nationals are minimal, when contextualized against the government’s practices following 9/11.  This Article challenges Justice’s Kennedy’s assertion that the government’s post 9-11 detention policy was merely incidental and places Iqbal in the larger context of how immigration law and policy was made and applied in the aftermath of September 11, 2001.  Following this history, it describes the continued residual impact of post 9-11 immigration practices on individual noncitizens and their families.  Thereafter, the Article argues that far from creating a new standard for the immigration scholars and lawyers, the Iqbal decision perpetuates an accepted legal standard that permits the government to selectively discriminate against foreign nationals based on race, religion, ethnicity and political ideology, with minimal accountability of the actors who administer, approve of, or overlook such practices.  In doing so, Iqbal threatens basic principles of due process and equal treatment under the law that most citizens take for granted.    Critical of this standard, the Article makes some recommendations to Congress and the Executive Branch moving forward.

By Gary Gildin. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)

This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at:

• E-mail: gsg2@psu.edu
• Phone: (717) 240-5238

Abstract:

After Twombly, there was debate whether by adopting a more rigorous pleading standard for Sherman Act claims, the Supreme Court was usurping Congress’ role/intent in promulgating and approving amendments to the Federal Rules of Civil Procedure.  Iqbal extended the new Twombly pleading rule to determinations of qualified immunity in complaints seeking damages for violation of constitutional rights.  An examination of the Supreme Court’s past activism in crafting the qualified immunity in Section 1983 cases lends support to the argument that the Court in Iqbal was acting to achieve its own policy goals, not to enforce Congress’ intent as to the construction of the Federal Rules of Civil Procedure.

The Supreme Court’s role in interpreting legislation is to carry forth the intent of Congress.  In Pierson v. Ray, the Court held that the Congress that enacted Section 1983 intended to incorporate the common law immunity that existed in 1871.  In subsequent immunity cases, the Court a) extended qualified immunity to all government officials without asking whether they had immunity as of 1871, and b) continued to expand the immunity standard without linking those changes to evolution in the common law immunity.

The Supreme Court’s general practice is to decide only issues raised below, properly presented to the Court in the petition for certiorari and briefs, and necessary for resolution of the case. The Court’s adjustments to the qualified immunity standard arose in cases where a) neither party sought the modification from the lower courts, b) neither party asked the Court for the adopted alteration of the immunity test, and c) changing the test for immunity was not needed to resolve the case.

Senator Specter proposed a bill that would restore the pre-Twombly pleading standard under the Federal Rules of Civil Procedure.  This article suggests the bill be expanded to respond to the Court’s Section 1983 activism and to achieve a more sensible and considered allocation of the risk of constitutional loss.  Given that such proposed legislation likely would be dead on arrival in the current economic climate, a second option is for victims of government misconduct to bring damage claims under state constitutions.  Just as state courts are free to give broader construction of rights under state constitutions, they are empowered to afford lesser immunity to government officials.

Hon. G. Thomas and Anne G. Miller Chair in Advocacy; Director, Miller Center for Public Interest Advocacy; Professor of Law.  J.D., Stanford Law School; B.A., University of Wisconsin.

Professor Gildin is recognized as one of the nation’s leading teachers of advocacy skills and is a leader in the use of technology to assist instruction and learning. In 1999 he received the Jacobson Award presented annually to the outstanding teacher of trial advocacy. In addition to developing and teaching a nationally-recognized set of courses in advocacy, Professor Gildin has designed a course on Civil Liberties Litigation, for which he has prepared a multi-disciplinary and multi-media electronic coursebook, entitled Civil Liberties Litigation. In addition to his excellent course design and instructional work, Professor Gildin is a noted scholar in the field of religious liberty. His recent articles in the University of Pennsylvania Journal of Constitutional Law and the Harvard Journal of Law and Public Policy have explored ways in which religious freedom might be more extensively protected by state constitutions than by the First Amendment to the United States Constitution. As director of the Miller Center for Public Interest Advocacy, Professor Gildin has been instrumental in providing Penn State Law students with many opportunities to participate in public interest law practice, including as interns during their legal education. And Professor Gildin is not merely an excellent teacher and scholar; he has served as an officer of the American Civil Liberties Union of Pennsylvania and of its South Central Pennsylvania chapter. His work as counsel in civil liberties cases often affords students opportunities for observation or participation in significant litigation. Professor Gildin used a Canada-Fulbright Award to spend the 2007-08 academic year as Visiting Chair of International Humanitarian Law at the University of Ottawa Faculty of Law.

Author of:

Iqbal and the Supreme Court’s Legislative Agenda.¹ 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)

From the Author:

¹This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at:

• E-mail: gsg2@psu.edu
• Phone: (717) 240-5238