INTRODUCTION :: Judicial opinions analyzing civil procedure issues are unlikely sources of rich imagery. Recent legal scholarship on metaphor has focused on sexier areas of the law, such as constitutional interpretation or the regulation of new technologies. Nevertheless, beneath the superficially arid terrain of civil procedure opinions run streams of metaphor that reveal anxieties, fears, and resentments regarding the litigation process and that propagate a specific characterization of that process. These metaphors may be so subtle as to go unnoticed.
This Article notices and examines the metaphoric content and the frame-shifting technique of a far-reaching procedural opinion from the Supreme Court’s most recent term, Ashcroft v. Iqbal. That case, which builds upon the Court’s 2007 decision in Bell Atlantic Corp. v. Twombly, has increased the required specificity with which plaintiffs must plead their cases in order to avoid early dismissal. Both cases increased this requirement by subjecting the factual allegations of a complaint to a new and amorphous “plausibility” standard. While these rather technical cases drew little media attention, they have profoundly affected arguments regarding access to justice in civil cases. Both decisions, but especially Iqbal, place plaintiffs in a Catch-22. In order to enter the discovery phase of the litigation process, where litigants may use the power of the court to gain access to evidence in an opponent’s possession, plaintiffs must now state their claims in more factual detail than before. Often, however, plaintiffs cannot allege detailed facts until they gain access to detailed evidence through the discovery process.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital