tag:blogger.com,1999:blog-6196201224507060771.post7165360530273062839..comments2023-12-18T05:12:50.293-05:00Comments on LAW PROF on the LOOSE: Iqbal EmpiricsJon Siegelhttp://www.blogger.com/profile/05903271363747693689noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-6196201224507060771.post-7690850153482662752009-09-09T22:21:19.352-04:002009-09-09T22:21:19.352-04:00While you may be right that Iqbal is not good poli...While you may be right that Iqbal is not good policy, there needs to be a change.<br /><br />After leaving law school about a year and a half ago (I'm one of your former students) and starting a federal clerkship, what has surprised me most is the pervasive problems and staggering costs caused by merit-less litigation.<br /><br />Imagine if one of your students accused you of giving a poor grade because of his or her race/gender/etc. Assuming you didn't alter the grade based on attendance, then because exam grading is anonymous, you will almost certainly win at trial. In fact, it would be clear to almost everyone that the suit was a load of crap.<br /><br />Getting to trial however, or at least getting to summary judgment, would take at a minimum one year, more like two. The discovery and motion practice will cost a fortune. And even though you should ultimately win, there is still the thought in the back of your mind that some crazy jury may just give the plaintiff exactly what he or she is seeking (I've seen it happen). For those two years, the law suit will haunt your professional and personal life. <br /><br />What would it cost to bring such a suit? What would it cost for the plaintiff to affect your life so profoundly? A four-page complaint and a filing fee. (Present Siegel students take note.)<br /><br />The problem is there is absolutely no cost for a plaintiff to bring a lawsuit. There are enough bad lawyers out there that someone would provide representation, the representation would be on contingency, and if the plaintiff ultimately loses, he or she wouldn't have to pay a penalty. There is no disincentive to sue. There is no cost benefit analysis. There is no cost!<br /><br />Anytime you have a system built upon this kind of extreme, it cannot function effectively. There must be a balance. How we provide the balance is up for debate. Perhaps we need to adopt the English Rule for attorney's fees, thus creating a cost-benefit analysis. But if you want to keep litigation free for all plaintiffs and avoid chilling valid claims, then you need to give some discretion to judges so that they can throw out frivolous cases.<br /><br />What I don't understand is, what is so wrong (7th Amendment aside) with letting judges make a call on the merits of the case, limited to just to whether the case passes the smell test. For some reason we are willing to trust a group of strangers, who have no knowledge of the subject matter of suit, to make the right decision, yet we get our panties in a wad when an intelligent, respected judge, with decades of experience determines a question of fact.<br /><br />Iqbal may not have been the best case, but unless you want to change the cost structure of litigation, some wiggle room is necessary.Anonymousnoreply@blogger.com