It Just Got a Lot Harder For Americans To Have Their Day In Court

By rewriting the rules for civil complaints, the Supreme Court denied access to poor and middle-class people—and handed a big gift to corporate interests.
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    Scales of Justice

    “Scales of Justice” statue representing the Roman goddess of justice personifying moral force. (Photo via wikimedia commons)

    Most Americans believe they have the right to take their grievances to court. But in 2009, the Supreme Court’s ruling in Ashcroft v. Iqbal imposed a new hurdle—one of several it has created for plaintiffs in recent years—that prevents many people from getting a hearing.

    The procedural rules for our federal courts, established in 1938, were designed to provide relatively easy entrée. Civil Rule 8 required only a “short and plain statement” showing a right to relief. For over 60 years, the Supreme Court repeatedly said that plaintiffs need only give the defendants notice of their claims; proof of what actually happened was for trial. But in Iqbal, the Roberts Court drastically departed from the justice-seeking ethos of easy access. By doing so, it radically extended a process started two years earlier in Bell Atlantic v. Twombly, a potentially mammoth antitrust case against the telephone industry.

    Iqbal was an emotionally charged outgrowth of 9/11. Javaid Iqbal, a Pakistani Muslim, claimed that numerous high-ranking federal officials, including Attorney General John Ashcroft and FBI director Robert Mueller, were aware of and condoned his illegal detention and harsh treatment in a Brooklyn facility, allegedly targeting him because of his race and religion. The legal issue was whether his pleading satisfied Rule 8. Instead of asking only whether Iqbal had given sufficient notice of his claims, the Court essentially rewrote the rule and insisted that his pleading had to state facts showing that his claim was “plausible,” a significantly more demanding standard than Rule 8 ever intended.

    The Court didn’t have to go beyond the particular facts of Twombly or Iqbal, both of which were extremely unusual and unique. Yet in Iqbal, a 5–4 majority declared that this newly minted pleading standard should be applied in all federal civil cases. As a result, specific facts must now be alleged even in run-of-the-mill cases; if this isn’t done, the plaintiff will be dismissed.

    And the reason? The Court’s opinions expressed concern only about the burden on corporate America of defending against claims, as well as the distraction and intrusion of litigation against government officials and agencies. The effects of closing the courthouse doors on individuals were barely acknowledged. Twombly and Iqbal exemplify the Roberts Court’s lack of confidence in the ability of federal trial judges to eliminate frivolous cases and control litigation costs and delay, and an even greater lack of confidence in the people who sit on juries.

    The Court told federal trial judges to use their “judicial experience” and “common sense” to decide whether plaintiffs have “plausible” claims. That promotes judicial subjectivity, which inevitably will be influenced by each judge’s economic and social background, values, and attitudes. Realistically, the Court’s vague standard invites judges to guess at a case’s merits based solely on the complaint. But that is decision-making by paper, a far cry from our long-standing tradition of witnesses testifying before a jury in open court.

    To obtain a hearing, plaintiffs must now have significant information about their claims before they sue. But many injured people simply don’t or can’t know what happened to them. Before Iqbal, plaintiffs could give notice of their claims and then find the relevant evidence. The discovery stage gives litigants the ability to obtain information they couldn’t get before bringing suit and levels the playing field so that each side has the same access to the facts, thereby promoting informed settlements, meaningful trials, and more accurate resolutions. By telling judges to dismiss cases they don’t think are “plausible” based only on the complaint, Iqbal steals the keys to discovery, preventing plaintiffs from unlocking vital information.

    In Iqbal, the Roberts Court ignored the problem of information asymmetry and shifted the balance to favor those best able to keep their records, conduct, and secrets to themselves. In many contemporary litigation contexts, critical information—about, say, a drug’s harmful side effects, the flawed design of a household product, or a discriminatory hiring practice—is known to the defendant but unavailable to the plaintiff. Thus, the plaintiff—and the public—may never learn of a danger because a case may be dismissed as implausible without any discovery.

    The Court’s new heightened pleading standard makes it extremely difficult for poor and middle-class people to bring suit. Lawyers are often reluctant to represent plaintiffs—especially on a contingent-fee basis—who have claims that will not easily meet the “plausibility” threshold. The costs and risks are too high. Some meritorious claims will never be asserted and, even if brought, will be attacked by dilatory and expensive defense motions. Plaintiffs without sufficient resources will be stopped at the courthouse door because it may be too time-consuming, costly, or simply impossible to uncover the necessary “plausible” facts.

    The heightened pleading standard has been applauded by those who believe that corporate America and the government must be protected against expensive discovery. But, nonsensically, Iqbal’s threshold barrier applies even to the substantial percentage of federal cases that do not call for much, if any, discovery. For many types of cases, Iqbal’s cure seems worse than the disease. A heightened pleading standard is the wrong answer to overstated concerns about discovery. It is also inconsistent with our desire to have a justice-seeking procedural system. Our judges have other tools for separating the wheat from the chaff.

    The consequences of the ruling are seismic. Along with other procedural obstacles devised by the Supreme Court,Iqbal not only denies meaningful access to federal courts but also undermines the enforcement of important public policies designed to protect millions of Americans. It is now harder to bring cases involving employment discrimination, civil-rights violations, defective products, and consumer injuries. Indeed, the rate of dismissal in these cases since Iqbal is quite striking.

    The scales of justice have been tipped against citizen access, compromising our cherished day-in-court principle and the constitutional right to a trial by jury. A procedural system that creates barriers to access, promotes early termination of cases that may have merit, and erects hurdles that favor powerful companies or the government does not befit the truth-seeking aspirations of American civil justice. For many, Iqbal—along with other Roberts Court decisions in the past decade—represents a sign on the courthouse door reading closed.

    Copyright © 2015 The Nation
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    Stories published in our Hot Topics section are chosen based on the interest of our readers. They are republished from a number of sources, and are not produced by MintPress News. The views expressed in these articles are the author’s own and do not necessarily reflect Mint Press News editorial policy.


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    • JB Smith

      The American Reinvestment and Recovery Act and the brain initiative are the worst scams ever perpetrated on
      the American people. Former U. S. Surgeon General Regina Benjamin Warns: Biochips Hazardous to Your Health: Warning, biochips may cause behavioral changes and high suicide rates. State Attorney Generals are to revoke the licenses of doctors and dentists that implant chips in patients. Chip used illegally for GPS, tracking, organized crime, communication and torture. Virginia state police have been implanting citizens without their
      knowledge and consent for years and they are dying! Check out William and Mary’s site to see the torture enabled by the biochip and the Active Denial System. See Terrorism and Mental Health by Amin Gadit or A Note on Uberveillance by MG & Katina Michael or Safeguards in a World of Ambient Intelligence by Springer or Mind Control, Microchip Implants and Cybernetics. Check out the audio spotlight by Holosonics. The truth is the biochip works like a sim card. It received pulsed modulated laser beams and millimeter wave which it converts into electromagnetic waves that your brain interprets into digital images and sound. It then takes what your brain sees and hears and converts electromagnetic waves into digital and acoustic waves that a computer translates into audio and video. In other words, it allows law enforcement to see what you see, hear what you hear and communicate directly with your brain.
      “Former Defense Advanced Research Projects Agency (DARPA) director and now Google Executive, Regina E. Dugan, has unveiled a super small, ingestible microchip that we can all be expected to swallow by 2017. “A means
      of authentication,” she calls it, also called an electronic tattoo, which takes NSA spying to whole new levels. She talks of the ‘mechanical mismatch problem between machines and humans,’ and specifically targets 10 – 20 year olds in her rant about the wonderful qualities of this new technology that can stretch in the human body and still be functional. Hailed as a ‘critical shift for research and medicine,’ these biochips would not only allow full access to
      insurance companies and government agencies to our pharmaceutical med-taking compliancy (or lack thereof), but also a host of other aspects of our lives which are truly none of their business, and certainly an extension of the removal of our freedoms and rights.” Google News
      The ARRA authorizes payments to the states in an effort to encourage Medicaid Providers to adopt and use “certified EHR technology” aka biochips. ARRA will match Medicaid $5 for every $1 a state provides. Hospitals are paid $2 million to create “crisis stabilization wards” (Gitmo’s) where state police torture people – even unto death. They stopped my heart 90 times in 6 hours. Virginia Beach EMT’s were called to the scene.

      Mary E. Schloendorff, v. The Society of New York Hospital 105 N. E. 92, 93 (N. Y. 1914) Justice Cardozo
      states, “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages. (Pratt v Davis, 224 Ill. 300; Mohr v Williams, 95 Minn. 261.) This case precedent requires
      police to falsely arrest you or kidnap you and call you a mental health patient in order to force the implant on you.
      You can also be forced to have a biochip if you have an infectious disease – like Eboli or Aids. Coalition of Justice vs the City of Hampton, VA settled a case out of court for $500,000 and removal of the biochip. Richard Cain is in a California court and recently had five removed from his body. Now he is advocating to get them removed from his children. When did the United States Law enforcement agents think it was okay to torture tiny children. Torture is punishable by $1,000 per day up to $2 million; Medical battery is worth $2.05 million. Let this be an election question.

      They told my family it was the
      brain initiative. I checked with the
      oversight board, and it is not! Mark
      Warner told me it was research with the Active Denial System by the College of
      William and Mary, the USAF, and state and local law enforcement. It is called
      IBEX and it is excruciating.

    • JB Smith

      I filed a case in Federal Court in which the judge dismissed even though the Defendant wanted to continue. Riverside Hospital filed a request for a production of documents in order to continue. Judge Arenda Allen dismissed it. Judge Allen allowed an attorney to obtain and put online without seal my privileged though fraudulent medical records. In addition, I proved in sworn conflicting testimony that two people perjured themselves in court. It is criminal. The worst part is that she denied a motion for a cessation of torture.

    • Stanley Wasserman

      Jesus H Christ

      • TecumsehUnfaced

        He was a Palestinian. Today the Mossad would shoot and torture him.

    • D J

      Good, as most of these lawsuits are frivolous and there is no loss for those suing if they lose their case.

      • TecumsehUnfaced

        That was much more frivolous a statement than any of those lawsuits.

        But what can we expect from such a ranting bigot?

        • D J

          Not only are you a fool, you’re a troll as well.

          • TecumsehUnfaced

            Wow! Another frivolous statement to confirm your depravity.

            • D J

              You’ve got a bag of nothing, troll.

              • TecumsehUnfaced

                Come one, kid! Is frivolity all you’ve got now?