The dominant presence of pro se litigation on federal dockets represents the American legal system's emphasis on protecting access to court. However, if access denotes a meaningful opportunity to be heard, the drastic shift in pleading practice ushered in by the Supreme Court's ruling in Ashcroft v. Iqbal signals a troublesome retreat.
To account for the challenges faced by self-represented litigants seeking to initiate a lawsuit, federal courts liberally construe their complaints. Instituted during the now-supplanted notice pleading regime epitomized by Conley v. Gibson, liberal construction primarily targets pro se plaintiffs' inability to effectively articulate both the legal and factual bases for their claims. These were the most significant hurdles to their complaints passing muster under the "no set of facts" standard, which otherwise instituted quite a low threshold to successfully pleading a cause of action.
The new plausibility regime, though, renders liberal construction an ineffective bulwark against premature dismissal of meritorious pro se complaints. Each step in deciding a 12(b)(6) motion now uniquely disadvantages pro se litigants, making inartful drafting and improper invocation of the law no longer the only challenges that must be addressed by liberal construction. First, Iqbal's disregard for "conclusory" factual allegations disproportionately affects pro se complaints because their authors (1) lack resources necessary to engage in pre-filing discovery, (2) typically allege claims requiring them to plead information exclusively within defendants' possession, and (3) rely upon forms that tacitly promote the use of shorthand factual allegations resembling legal conclusions. Second, to determine whether claims are plausible, judges are instructed to draw inferences based upon background sets of values and beliefs that often differ substantially from those of the stereotypical pro se litigant. This disparity lends itself to the pernicious effects of cognitive illiberalism, a process by which observers discount without great consideration contrary viewpoints and favor their own in making decisions.
Without a form of liberal construction that deals with these unfortunate developments, pro se litigants' right to be heard will continue to deteriorate. Therefore, this paper suggests two ways by which to strengthen liberal construction that limit Iqbal's hostility toward pro se complaints.
Rory K. Schneider. "Illiberal Construction" none (2010).
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