In this post, I turn to an Iqbal specific critique.  In our system of justice, determining the veracity of allegations is reserved for the finder of fact.  While that role can be played by the judge (at the appropriate stage of the trial), it is typically played by the jury. Recall, under Iqbal, however the courts need not assume a plaintiff’s factual averments to be true.  Any scheme, such as this, that empowers judges pre-discovery to determine the truthfulness of allegations limits the traditional role of the jury.  But of course, the jury trial is a constitutionally enshrined value.

Now, our system limits jury power in many meaningful ways.  The jury must base its decision on admissible evidence, that evidence itself must be deemed sufficient (assuming it is true) to support the verdict, jury instructions play a big role, etc.  But absent truly outrageous claims, our system ultimately leaves the determination of whether a claim is true to the jury.  That is our tradition (and constitutional command in non-equity cases).

The set of truly outrageous claims that form the exception to this rule leaving the truthfulness of assertions to the finder of fact is limited.  Justice Souter, again the author of Twombly but dissenting in Iqbal, makes this point: “The sole exception to this rule lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.”  Iqbal, 129 S.Ct. at 1959 (Souter, J., dissenting). 

Iqbal itself is not a little-green-men allegation.  Plaintiff alleges that John Ashcroft was motivated by racial and religious prejudice in enacting an enforcement regime.  Now this might be false.  (I hope so.)  But it is not an allegation of time travel.  Thus, traditionally speaking, it would be for the jury to ultimately decide whether the allegation is true.  Iqbal, however, empowers a trial judge to determine whether allegations are plausibly true based upon his or her common sense and experience.  Now, I am all for common sense and experience as the ultimate arbiter of liability — but traditionally it has been the jury who exercises that function.  I think that the proper balance.

We can already see this traditional balance shifting.   In a recent district court case in the Middle District of Georgia, Rhodes v. MacDonald, the court employed Iqbal’s common sense standard.  The court held, as a matter of common sense, that plaintiff’s allegation that President Obama was born in Nigeria is untrue.  While this is common sense to me too, I am not the jury.  Indeed, a jury might well agree with plaintiff, given that, according to some polls, 58% of Republicans thinks the President not a native born citizen. 

The point, I believe, is that while our system maintains many tools to ferret out meritless factual assertions, mere common sense of the trial judge has never been one of them.  This is a big change.  Take, again, my hypothetical Title VII claim in which the plaintiff alleges intentional racial discrimination.  Could a judge under Iqbal, dismiss the case because, based upon his/her common sense, employers just don’t discrimination anymore?  Is this any more implausible than that John Ashcroft was motivated by prejudice?  I think not.