Wednesday, May 20, 2009

How About an Official Inquiry After Iqbal?

On Monday, I posted about a disturbing aspect of the Supreme Court's decision in Ashcroft v. Iqbal: The Court's expressed willingness to withhold a cause of action against federal officers for violations of constitutional rights on an ad hoc right-by-right basis. For an excellent discussion of this problem in broader perspective, see this forthcoming law review article by David Baltmanis and James Pfander.

In my latest FindLaw column, I explore the likely implications of Iqbal for pleading practice in the federal courts. I conclude that Iqbal will lead to a higher rate of dismissals in just about all categories of civil lawsuits before any discovery is completed. My column also faults the majority in Iqbal for its statement that the possibility of a deliberate policy of discrimination against, and abuse of, Arab and Muslim men in the post-9/11 investigation was too remote to warrant discovery. Post-Abu Ghraib and post-torture memos, I say, allegations that abuse was not merely the result of a few bad apples should be sufficiently credible to warrant at least some further investigation.

Here I want to bring to bear a comparative law insight. When I described the holdings of Iqbal and Bell Atlantic v. Twombly (discussed in my column and also here and here) to a visiting scholar, he said that in Germany (where he is a law professor), cases like Iqbal and Twombly would be handled quite differently from one another. In an antitrust or other "administrative" (in the German sense) case, the plaintiff would be responsible for bringing evidence before the court, but in a German public law/constitutional case similar to Iqbal, the allegation of discrimination and abuse approved by high-ranking government officials would lead the court to undertake an investigation on its own, because of the far-reaching ramifications.

Two main features of the American justice system prevent something like the German approach from applying here. First, our procedural rules are "trans-substantive," i.e., we use the same rules in all civil cases in our federal courts. Second, we use the adversary system, rather than conferring "inquisitorial" power on judges in the way that continental systems frequently do. Here it would be deemed a violation of separation of powers for a federal court judge to undertake his or her own investigation into government wrongdoing.

In light of the more passive role of American judges relative to their European counterparts, one might think that the result in Iqbal is especially problematic: Because we rely on the parties alone to develop the facts, denying discovery to Iqbal could mean leaving these very serious allegations uninvestigated. But even if one thinks that the result in Iqbal is correct, our system ought to have some way of responding to allegations of serious government wrongdoing that do not lead to discovery but are not disproved either.

And indeed we do have some mechanisms available. Congress could hold hearings to investigate. The Justice Department or some other agency within the executive branch could conduct an internal investigation. Alternatively, concerns about partisanship could lead to the appointment of an independent counsel if preliminary investigation leads to the conclusion that the allegations have something to them. And of course, journalists (to the extent that there are still any news organizations that have the budget to support investigative reporting) could dig into this. It is not clear to me that these are better options than letting the Iqbal litigation go forward would have been, nor are they in any way mutually exclusive. But at the very least, the dismissal of the complaint in Iqbal should not be the basis for concluding that nothing else should be done about this episode.

Posted by Mike Dorf