Eight Months of Iqbal: Part 2

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2 Responses

  1. TJ says:

    I am glad that someone is separating out the “conclusory” concept from the “plausibility” concept. But I don’t think this does the trick. Suppose I make a very concrete and particularized allegation that alien UFOs abducted me at the personal instruction of President Obama. There is no possible way to dismiss the complaint except for lack of “plausibility,” as even the dissent in Iqbal recognizes. The only question is how low this plausbility bar is.

    The strange thing here is that, before Twombly, every court of appeals that I am aware of had opinions stating that “conclusory” allegations in a complaint may be disregarded, though Form 11 itself has a conclusory allegation.

  2. Adam Steinman says:

    Thanks for the comment, TJ. On the hypo about Obama ordering your alien abduction, I think the answer is that this is not the kind of “plausibility” that the post-Iqbal framework is talking about. Kennedy’s Iqbal opinion makes clear that the problem with the Twombly and Iqbal allegations was their “conclusory nature,” not that they were “extravagantly fanciful” or “too chimerical to be maintained.” One proposal (from David Shapiro) that could deal with the alien-abduction scenario would be to recognize that courts can disregard allegations where “the rules governing judicial notice require a determination that the allegation is not credible.” (see http://prawfsblawg.blogs.com/prawfsblawg/2010/01/how-do-you-solve-a-problem-like-iqbal.html). And Justice Souter suggests in his Iqbal dissent that even non-conclusory allegations could be disregarded if they’re of the little-green-men variety.

    On your point about Form 11: to paraphrase a former lawyer-president, it depends on what the meaning of “conclusory” is. I elaborate on this issue in my forthcoming article (http://ssrn.com/abstract=1442786) and in my responses to some of the comments on my earlier post (http://concurringopinions.com/archives/2010/01/eight-months-of-iqbal.html). I think Form 11’s identification of the underlying liability-generating event (the collision) along with the defendant’s role in the event (he drove the car negligently) makes it more than a “mere legal conclusion,” even though the allegation of negligence, viewed in isolation, might be called conclusory.