Robert G. Bone (Boston University School of Law) has posted “Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal” on SSRN, see here. The essay is forthcoming in the Notre Dame Law Review, and I discuss it because Iqbal and Twombly are arguably two of the most important cases in recent years for those who litigate civil cases in federal court. I also think it is likely that the Court will revisit these cases over the next several Terms as the lower courts interpret and apply the new (or altered?) civil pleading standards. What is particularly helpful about Professor Bone’s essay is that it contains an extensive discussion of both opinions and highlights what Iqbal adds to Twombly. According to Professor Bone, one gloss of Iqbal is that it filters out “legal conclusions” in the complaint, even where those conclusions are quite specific when read in the context of the entire complaint. He further argues that the two-pronged approach of Iqbal bifurcating legal conclusions from factual allegations in the plausibility analysis is incoherent and unjustified. In other words, Iqbal results in overaggressive screening of complaints at the motion to dismiss stage. It also prevents adequate consideration and discovery in “weak” (as opposed to meritless) cases where the defendant possesses the information to prove the claim at trial and even to plead more specific facts in the complaint. In the end, Professor Bone suggests that the Supreme Court is not the best-equipped institution to be designing pleading rules, but such rules should instead be subject to formal rulemaking under the Rules Enabling Act or an Act of Congress.
Nelson Tebbe (Brooklyn Law School) has posted “Privatizing and Publicizing Speech” on SSRN, see here. The paper is also posted at the Northwestern Law Review Colloquy website, see here. This short essay examines the Court’s decision from last Term in Pleasant Grove City v. Sunnum (2009), and Salazar v. Bueno, which was argued earlier this past fall and involves the constitutionality of the white cross located in the Mojave National Preserve. In addition to summarizing both cases, Professor Tebbe’s take on the two cases is different from what I have seen written elsewhere: he analyzes them in the context of whether private contractual or property law arrangements can alter the way the Court analyzes the constitutional claims involved in a case. On this point, he argues that the Court has been inconsistent in the past: “Some of these contractual arrangements may have properly addressed the underlying constitutional concerns, while others may have functioned more like gerrymanders that allowed the government to effectively evade constitutional limitations.” In some cases, private contractual arrangements have insulated particular actions from constitutional scrutiny, while in others the Court has pretty much ignored the formal contractual or property rights of the parties. Although Professor Tebbe does not suggest a solution, he does argue that this inconsistent treatment of constitutional obligations deserves some level of standardization "in a sustained way, across all substantive domains." In the same online symposium, Joseph Blocher (Duke University Law School) analyzes similar issues with respect to the Sunnum case in this essay.