Pearson, Iqbal, and Procedural Judicial Activism

In its most recent term, the Supreme Court decided Pearson v. Callahan and Ashcroft v. Iqbal, two cases that, even at this early date, can safely be called “game-changers.” What is fairly well known is that Iqbal and Pearson, on their own terms, will hurt civil rights plaintiffs. A point that has not been explored is how the interaction between Iqbal and Pearson will also hurt civil rights plaintiffs. First, the cases threaten to catch plaintiffs on the horns of a dilemma: Iqbal says, in effect, that greater detail is required to get allegations past the motion to dismiss stage. But a plaintiff who says too much at the pleading stage risks getting kicked out by Pearson: if the allegations are very specific, a court (deciding qualified immunity) will conclude that the constitutional right, if any, is so specific as not to be clearly established. If the litigant pleads at a level of generality to avoid the ‘clearly established’ problem, he will get tripped up by Iqbal, because the allegations will be deemed “conclusory” or too general to be “plausible.” Iqbal and Pearson also take divergent tacks with regard to the role of 1 J.D., Harvard, 2007; A.B., 2003, M.P.P., 2004, Georgetown. gjois@post.harvard.edu. I have received helpful comments and feedback at various stages of this project from Martha Field, Paul Pineau, Alexander Reinert, and Erez Reuveni. I have benefitted from the work of two excellent research assistants, Debbie Chung and James Partridge. As always, thanks to my parents, Umesh and Indira; my sisters, Malasa and Mallika; and my wife, Elizabeth, for continued love and support. Any perceived errors are mine. Pearson, Iqbal, and Proceudral Judicial Activism -final 9/12/2009— 3:07:36 PM 2009] PEARSON, IQBAL, AND PROCEDURAL JUDICIAL ACTIVISM 2 lower courts. In Pearson, lower courts are entrusted to decide which step of qualified immunity to decide first. Iqbal also expands courts’ authority by empowering them to determine “plausibility” based on their “common sense.” But at the same time, Iqbal takes away the district court’s ability to manage litigation (by using procedures explicitly provided in the Federal Rules and previously approved by the Supreme Court) in order to shield public officials, relying instead on the rather blunt instrument of dismissing the case entirely. The cases expand and restrict lower courts’ discretion, but only do so in a way that makes it easier to dismiss civil rights lawsuits. Pearson and Iqbal exemplify what I call “procedural judicial activism”: the invention of procedural rules to significantly curtail the availability of remedies in civil litigation, especially in the context of civil rights claims. In short, although Pearson and Iqbal are thought of as affecting different, and distinct, areas of law, they interact in ways that are detrimental to civil rights plaintiffs. This interaction was not addressed by the Court in either case, nor has it been recognized in the academic literature thus far.