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Bar News - May 14, 2010

Morning Mail: Richards-Stowers’ New Rap: Ashcroft v. Iqbal

Nancy Richards-Stower
Dear Editor:

Last year, in Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937 (2009), the U.S. Supreme Court stepped way back from its "notice pleading" standards for civil complaints, and thus made it even more difficult for civil rights plaintiffs to get to trial.

In years past I’ve railed against the federal courts’ dismissals on summary judgment of important civil rights employment cases which would have resulted in significant verdicts had plaintiffs been allowed to get jury trials. After Iqbal, which expanded into the general civil law the pleading standard which Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) had applied to anti-trust pleadings, courts can kill civil rights cases right after they are filed, on a motion to dismiss, before any discovery can be served. Arghh! The new Iqbal anti-plaintiff standard is whether the allegations on the face of the complaint constitute a "plausible" claim to the federal district court judge. Double Arghh!

Why worry? Why care? Why be afraid? (I haven’t felt this concerned by the Supreme Court’s ability to change life as we know it since Bush v. Gore.) Why? Because what is plausible to federal judges, an undisputedly, statistically narrow class of citizens (mostly white, mostly male and mostly upper middle-class), will be far different from what is plausible to the victims of discrimination, subjected to daily indignities, whom I have the privilege of representing.

So I rap my take on Iqbal, and like my Rap on Summary Judgment (Bar News - February 13, 2009) it should be read passionately (though respectfully) in a strong, loud, driving beat.

Ashcroft v. Iqbal
Each new year I do a Lawyer’s Rap
On th’ federal courts’ penchant to slap
Employee Rights we struggled to build
Since the 60’s (in that hopeful world).

Since last year’s very-fine CLE
We got Iqbal and defendants’ glee
‘Cuz courts can now kill all your rights
Even before th’ summary judgment fight.

On the basis of a white, male’s view
Of what is "plausible" is the new
Way to kill the rights of one
Whose complaint may lack a smoking gun.

Women from Venus, Men from Mars,
Rich live in privilege, poor folks in cars;
Isn’t it clear that what we see
Is blurred from the prism of where we be?

Can you dispute the Prism Fact
That a federal judge’s experience lacks
Daily indignities brought to bear
By sexists and racists and others who tear
At the lives of those not sharing The Power
Of the judges who sit in their marble towers?

So after the health care, bailouts and wars
Are debated on Congress’ most hallowed floors,
We hope our Reps will focus on the fates
Of bias victims who just want dates
With juries of their peers like the rich guys get--
That Ashcroft v. Iqbal did quite upset.

Let Discovery First be there for all
And not let a court’s "Plausibility Call"
Determine the fate of the civil rights
Of job bias victims willing to fight.

Nancy Richards-Stower

NHLAP: A confidential Independent Resource

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