Stephen Subrin

Document Type



We were asked to write about one of the worst United States Supreme Court opinions we had read. My article is about Ashcroft v. Iqbal because it is such an important decision in the field of federal civil litigation and the majority opinion is unsupportable in so many different ways. I explain how that opinion changes the substantive law of supervisory liability for government officials without providing the parties notice that the issue would be considered by the Court. The majority then enshrines fact pleading requirements in federal court for all cases (although denying they have done so), without following the strict statutory method for amending the Federal Rules of Civil Procedure. They also do this by misinterpreting Federal Rule 9(b) that permits the general allegation of states of mind and by ignoring the Forms attached to the Rules. Moreover, the instructions by the Court to lower court judges to disregard conclusory allegations and then decide whether a case is "plausible" are non-defining and an invitation for arbitrary decision making. Ashcroft v. Iqbal is in direct contradiction to the liberal pleading, broad discovery regime envisioned by the Supreme Court and Congress in enacting the 1938 Federal Rules of Civil Procedure, and specifically mandated in subsequent Supreme Court decisions, as well as an assault on the private enforcement of public rights that Congress assumed in passing dozens of statutes since 1938. The decision is also an attack on the Seventh Amendment right to trial by jury because its effect is to invite trial judges to decide factual issues in jury cases. The lawless behavior of Justices in the majority in this case returns pleading in Federal Court to a procedural regime that proved unsatisfactory in the second half of the nineteenth century and the early decades of the twentieth.

Date of Authorship for this Version



federal civil litigation, Supreme Court, Civil Procedure, Law

Original Citation

Originally published in Nevada Law Journal, Vol. 12, No. 3, pp. 571-581, Summer 2012.