We recently took an ivory tower tour to see what academics were saying about Twombly/Iqbal. Not surprisingly, we found more disapproval than approval, and more complexity than clarity. One law review article, Effron, “The Plaintiff Neutrality Principle: Pleading Complex Litigation in the Era of Twombly and Iqbal,” 51 Wm & Mary L. Rev. 1997 (2010) (hereinafter “Effron“), quotes us on the applicability of Twombly/Iqbal to MDL master complaints.
First, thanks for noticing, Professor. We’re glad to see folks in the academy pay some attention to what actual practitioners think about the prominent legal issues of the day. Second, while we find parts of the article to be closely-reasoned and creative, we think the idea of narrowing Twombly/Iqbal to make the plausibility requirement more palatable is like saying half a loaf is better than none. Right now, we still think we’re entitled to the whole loaf.
Let’s start with the title of the article, focusing on that “Neutrality” word. Our business is advocacy. From where we stand, there isn’t much neutrality in sight. We argue for our client’s positions and cite to “neutral” principles when they are helpful and convenient. Plaintiff lawyers do likewise. Why? Courts necessarily say they like neutrality. When we were in law school in the Pleistocene era (well before the “Era of Twombly and Iqbal“), we were compelled to read a lecture by Columbia law professor Herbert Wechsler titled “Toward Neutral Principles of Constitutional Law.” It’s been a long time since we thought about that lecture.
Neutrality is a tool that takes one only so far. Kant and Rawls built entire philosophies around the concept of neutrality. What’s the categorical imperative but a mental exercise where you pretend you might be any random member of society before deciding how you’d like a certain set of arrangements? But it’s a strange, counterfactual mind-game, and it seems oblivious to huge chunks of human experience. Rawls’s Theory of Justice pretends people aren’t the passionate, risk-taking bundles of neurons they really are. The only time we’ve found the neutrality principle to work is when we’ve told our kids that one cuts the pie then the other chooses. We’ve found more wisdom in the philosophy of Thomas Hobbes, not just because “solitary, poor, nasty, brutish, and short” perfectly described our junior prom date, but because he said that “Reason scouts and spies for the passions.”
We’re not neutral when we litigate cases. Plaintiff lawyers aren’t neutral. Sad to say, but most judges don’t come across as neutral. If they don’t favor a side, they often seem to favor docket control, or passing frail cases along to juries so as to avoid tough decisions. Maybe gatekeeping should be neutral, but gatekeeping is hard work.Continue Reading We’re Not Neutral on Twombly/Iqbal