Professor A. Benjamin Spencer had his article, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis & Clark L. Rev. 185 (2010), published in the Lewis & Clark Law Review.
The article addresses the Supreme Court case, Ashcraft v. Iqbal, where the Court affirmed its commitment to more stringent pleading standards for the ordinary federal civil case. Prof. Spencer finds two disconcerting elements in Iqbal. First, he claims the Court treated Iqbal’s factual allegations in a manner that erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. Thus, judges may exercise their own subjective, malleable standards to reject pleadings based on their own predilections or “experience and common sense.” Second, Prof. Spencer finds that the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Ultimately, Prof. Spencer concludes that Iqbal is “an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years.”
Professor Spencer’s article can be found here.