Thursday, March 4, 2010

For over fifty years, the Supreme Court's standard for pleading a claim has been a liberal standard known as notice pleading. According to this standard, claims should not be dismissed unless "plaintiff can prove no set of facts in support of his claim." Conley v. Gibson,355 U.S. 41, 45-46 (1957). This standard did not require the plainftiff to plead detailed facts to support the claim. In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Supreme Court made clear that there is now a new pleading standard that is applicable in all civil cases which holds that the plaintiff must allege sufficient facts to show that a claim is plausible. Judges are to use their "experience and common sense" in evaluating the plausibility of claims. Two new articles explain how this major shift in pleading standards is likely to create problems for Latinos/as and other minorities who seek to challenge discrimination. See Suzette M. Malveaux, Front Loading and Heavy Lifting: How Predismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases,; A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, Latinos/as and other minority plaintiffs will find it difficult to allege sufficient facts to meet the plausibility standard since such facts will often be unavailable to them and because judges may use their "experience and common sense" to conclude that the claim of discrimination is not plausible.

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