Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores

• Publication year: 2021
• Citation: Vol. 88

88 Nebraska L. Rev. 261. Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores

Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores

Kenneth S. Klein(fn*)

TABLE OF CONTENTS

I. Introduction.......................................... 262

II. The Evolution of Contemporary (Heightened) Pleading Standards ............................................ 265
A. The Eighteenth Century English System of Form Pleading.......................................... 265
B. The American Evolution from Form Pleading to Fact Pleading to Notice Pleading.................. 267
C. Notice Pleading and the Seventh Amendment...... 268
D. From "No Set of Facts" to "Plausible Facts"........ 269

III. Under Iqbal, Rule 8 is Unconstitutional (Sometimes).. 274
A. The Historical Test Leaves No Wiggle Room for Iqbal.............................................. 274
B. The Supreme Court's Application of the Historical Test to Pre-Trial Civil Procedure .................. 276
C. The Academic Debate over the Constitutionality of Pre-Trial Civil Procedure.......................... 283

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D. The Constitutionality of the Motion To Dismiss-A Thought Experiment.............................. 284

IV. Conclusion............................................ 287

I. INTRODUCTION

Since the early nineteenth century, the interpretation of the Seventh Amendment preservation of the right to a civil trial by jury has remained static and become increasingly anachronistic. Over the same period of time, the evolution of modern civil procedure pleading standards has been on a collision course with that interpretation. The penultimate 2007 Supreme Court opinion in this field, Bell Atlantic Corp. v. Twombly,(fn1) raised the specter of an impending impasse between pleading standards and the Seventh Amendment. The 2009 opinion in Ashcroft v. Iqbal(fn2) is the point of impact. While the Iqbal opinion fails to even acknowledge a potential conflict with the Seventh Amendment, the decision inescapably interprets Federal Rule of Civil Procedure 8 in a manner that is unconstitutional when measured against the traditional (and continuing) interpretation of the Seventh Amendment-the so-called "historical test."

The collision between Iqbal and the Seventh Amendment, simply stated, is that under the historical test it is unconstitutional to give a judge the power to weigh the factual heft of a complaint at the outset of a civil case and to dismiss it as insufficient. Yet, that power is precisely what the Iqbal Court held was a permissible mechanism for controlling frivolous litigation.

The Seventh Amendment provides that "in suits at common law . . . the right to trial by jury shall be preserved."(fn3) In the early nine-teenth century, the courts held that the Seventh Amendment preservation of a right to trial by jury in civil cases was measured by a static, or fixed in time, reference to common law in England in 1791.(fn4) In other words, a federal claim or procedure in a civil case falls within the scope of the Seventh Amendment if it existed, or had an analog, in the common law courts of 1791 England. This became known as the "historical test."(fn5) It remains today the operative interpretation of the Seventh Amendment.(fn6)

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As pleading standards have evolved in American courts, the standards have crept closer and closer to the edges of what would not satisfy the historical test. The common law in England in 1791 did not have pre-trial attacks on the pleadings for insufficient or implausible facts.(fn7) Eighteenth century civil pleadings were form writs. Pleading challenges tested compliance with the form. But as the American courts moved from form pleading to the Field Codes to Federal Rule of Civil Procedure 8, complaints moved from forms, to narratives, to notice pleading, and so motions to dismiss moved from attacks on compliance with a form to attacks on the factual sufficiency of a story, to attacks on the sufficiency of notice to a defendant about what a suit concerns. This inevitably challenged the dividing line between the respective roles of judge and jury.

The Supreme Court presaged the crossing of that line in Twombly.(fn8) Twombly involved a consumer class action challenge to local telecommunications companies on the basis that the parallel pricing of internet services could be explained only by as yet undiscovered conduct by the telecommunications companies in violation of antitrust laws.(fn9) The Court found that given the expense of discovery in antitrust cases, among other reasons, a trial court could dismiss this complaint on the basis that its facts were not "plausible."(fn10)

Twombly left open many questions. One prominent question was noted by the circuit court in Iqbal itself-whether the Twombly opinion really intended to change pleading standards at all.(fn11) Even assuming Twombly did create a new, plausibility pleading standard, the question remained whether Twombly applied to all civil litigation, or whether Twombly was narrow in application (perhaps either to antitrust contexts or to high-expense litigation contexts).

The Court answered both questions in Iqbal, a Bivens action brought by a post-9/11 detainee against numerous federal officials, including both the Director of the Federal Bureau of Investigation and the Attorney General of the United States.(fn12) In Iqbal, the Court held that a trial court, if ruling on a Rule 12 motion to dismiss, should not simply accept all of the factual allegations of a complaint as true, but rather should "draw on its judicial experience and common sense" to

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determine "whether a complaint states a plausible claim for relief."(fn13) The Court rejected the notion of restricting its interpretation of Rule 8 to the narrow context of Twombly, rather holding that "[o]ur decision in Twombly expounded the pleading standard for 'all civil actions.'"(fn14)

The opinion in Twombly suggested the Court was amenable to using the Rule 12(b)(6) motion to dismiss as a screening device to identify and quickly dispose of perceived frivolous litigation, and so triggered a vigorous, and important, debate about the desirability of imposing a system-wide, heightened Rule 8 fact pleading requirement for civil cases in federal court.(fn15) Iqbal confirmed the Court's intentions as foreshadowed in Twombly and certainly will only increase the vigor of the colloquy. Almost entirely missing from that largely academic debate, however, is any recognition that given the current state of Seventh Amendment law, it should be purely an academic debate.(fn16) Nowhere in Twombly or Iqbal is there any recognition that in the common law courts of 1791 England, a trial court could not dismiss a pleading because the factual allegations were implausible.(fn17)

Part I of this Article traces the development of the pleading standards from writs to Rule 8 to Iqbal. Part II demonstrates that under

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the historical test, Iqbal's interpretation of Rule 8 is unconstitutional-at least in cases to which the Seventh Amendment applies.

II. THE EVOLUTION OF CONTEMPORARY (HEIGHTENED) PLEADING STANDARDS

Under current Seventh Amendment jurisprudence, the constitutionality of any particular procedural practice requires more than a comparison of the practice to constitutional text; it requires an inquiry as to whether the procedure existed or had an analog in eighteenth century English common law practice. And, of course, because of the potential impact of precedent, one should also consider any constitutional evaluations that were made regarding the interim, evolutionary iterations of the procedure. Thus, to evaluate the constitutionality of a current procedural approach, one needs to know not just where we are, but where we began and how we traveled from one point to the other.

A. The Eighteenth Century English System of Form Pleading

The common law in England in 1791 was not structured in a way that anticipated a pre-trial attack on the pleadings for insufficient or implausible facts.(fn18) The role of pleadings was to frame a case within a particular form of code pleading, or writ, and to notify the defendant of what form had been asserted. It was not to notify the defendant of the specific facts giving rise to a dispute.(fn19) Stated in only slightly over-generalized terms, English common law pleading in 1791 entailed asserting through a declaration an entitlement by a recognized writ sufficient to notify the defendant of which form of action was claimed.(fn20)

English common law in 1791 provided few mechanisms for a judge, rather than the jury, to decide a case. There was no "procedure (other than demurrer [to the pleadings]) that would allow a judge to determine before trial that a case presented no issue to be decided by a jury, or that an issue in a case should be withheld from the jury."(fn21) A demurrer to the pleadings allowed a trial court to enter judgment as a matter of law if the parties conceded that they had no factual dispute

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with each other.(fn22) Even at the trial stage, under English common law, a judge could never decide a case without a jury or the parties determining the facts, however improbable the evidence might be.(fn23)

If the judge considered a factual matter to be of such common sense that it was not necessary to summon a jury to decide it, the court had a pretrial...