The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself - both in the already notorious pleading section of the opinion, and in the much-less-noted section on whether the Court even had jurisdiction over the case, which also turned on the distinction between law and fact. Iqbal further demonstrates the power issues that lurk below the “law” and “fact” labels. The Court’s misuse of the law/fact divide allocates authority to judges rather than juries, and gives appellate judges the power to review those decisions with no deference to the trial court. In addition, by using a case to change the long-established interpretation of a procedure rule, Iqbal allowed the Supreme Court itself to avoid the transparent and participatory process for amending the Federal Rules of Civil Procedure, and altered the balance of power between the Court and Congress.
Penn State Law Review - Penn Statim
Elizabeth G. Thornburg, Law, Facts, and Power, 114 Penn Statim 1 (2010)