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96 Iowa L. Rev. Bull. 1 (2010-2011)

handle is hein.journals/iowalrb2 and id is 1 raw text is: National Security and the Shadows of Judicial Common Sense Alexander A. Reiner I. MARGULIES'S CHARACTERIZATION OF THE PROBLEM.. ................. 3 II. MARGULIES'S CHARACTERIZATION OF THE RELEVANT CASES.................. 5 III. MARGULIES'S PROPOSED SOLUTION To TEMPER COGNITIVE BIASES........ 9 There is a section of the Supreme Court's decision in Ashcroft v. Iqbal, in which the Court departs significantly from the script that previously governed the rules of pleading since the seminal decision in Conley v. Gibson:2 the Court, while elaborating on the plausibility pleading standard that it had announced two years earlier,3 invites lower courts to use their 'judicial experience and common sense to decide whether a complaint plausibly alleges a valid cause of action.4 Peter Margulies's excellent article on the challenges facing courts adjudicating disputes involving national- security concerns offers a thoughtful intervention that should at the very least cause courts to hesitate before applying their common sense to complex factual disputes.5 In particular, the parallels he draws between cognitive-bias and judicial treatment of damages claims in national-security cases suggest howjudicial hubris can go awry. After all, what might seem like common sense to some judges may be a function of a collection of cognitive biases that may or may not bring us closer to the truth.6 * Associate Professor of Law, Benjamin N. Cardozo School of Law. I am grateful to Peter Margulies for inviting me to comment on his article. 1. 129 S. Ct. 1937 (2009). 2. 355 U.S. 41 (1957). 3. See Bell Atlantic v. Twombly, 550 U.S. 544 (007). 4. See Iqbal, 129 S. Ct. at 1950. 5. Peter Margulies, judging Myoia in Hindsight: Bivens Actions, National Secuity Decisions, and the Rule of Law, 96 IowA L. REV. 195 (2010). 6. I have suggested elsewhere that the likely costs of the lqbal pleading rule will be borne disproportionately by plaintiffs with meritorious claims who will be denied compensation because of premature dismissal. See Alexander A. Reinert, The Costs of JHeghtened Pleading, 86 IND. L.J. (forthcoming o1 i). Except at the margins, there is little reason to think that judges 1

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