Friday, October 19, 2007
Thursday, October 18, 2007
Click the link at the bottom of this post to listen to this week's installment of the Thursday Interview. This week's interview is with Robin Effron, a Bigelow Teaching Fellow and Lecturer at the University of Chicago School of Law, about her article forthcoming from the Southern California Law Review titled Event Jurisdiction and Protective Coordination: Lessons From The September 11th Litigation. Many thanks to Robin for a great interview.--Counseller
This is my first full CivPro class since the SCOTUS handed down Bell Atlantic v. Twombly. Here are some of the articles I'm reading to help get my brain wrapped around this issue. Maybe they'll help you too.--Counseller
Plausibility Pleading by A. Benjamin Spencer
UPDATE: Suja Thomas also has an article on the subject forthcoming from the Minnesota Law Review--Why the Motion to Dismiss is Now Unconstitutional. Thanks to Scott Dodson for his friendly reminder about Suja's article in the comments section. If you know of other articles on this topic, please mention them in the comments. Of course, you can also learn a great deal from Scott's posts on this blog on the subject here and from his essay Pleading Standards After Bell Atlantic v. Twombly.--Counseller
Tuesday, October 16, 2007
Last week, my professor started class by announcing that, if anyone was wondering, it was normal to be tired—probably more tired than we had ever been in our entire lives. My class laughed at this unorthodox opening, but he went on. He said we were at the point of the first year where the novelty of studying the law has begun to fade, the reading has piled up, and we probably felt the need to start putting things together. We were bound to be feeling a little anxious and, because of the lack of evaluation, maybe even a little insecure.
He was right. As I sit down to write this blog, my mind is being pulled in so many different directions by the material that I am struggling to come up with a single coherent insight about my Civ Pro experience. I started a couple of different entries, but, after a couple of sentences, found my finger on the backspace key and myself staring at a blank page and a blinking cursor. Everything I type seems true at first, but, as I read back over it, I begin to doubt its accuracy. I find myself with less I can confidently say about Civil Procedure than when I began the class two months ago. The theme of the past week seems to be that doubt has set in. I can only hope that doubt is a natural product of the process of really grappling with the material.
I tried to write a response to my professor’s warning that the students who should be worried about their study habits are the ones who are not confused at this point. At first, I was going to say I found that thought reassuring. Then, I began to wonder on what level I should be confused; I think I understand some things fairly well, does that mean I may be missing something in those areas? What about the fact that sometimes I think I understand things until I am asked to apply them a couple weeks down the line in a new context? Does that imply an understanding that is too shallow in the first place, or are those moments of confusion what my professor was referring to? When I really think about it, I become confused about whether I am properly confused. This is likely a sign I am missing undergraduate culture and the constant opportunities to demonstrate my knowledge it provided.
The lack of intermittent evaluation in law school seems to me to have a particularly acute effect on my anxiety toward Civ Pro. The combination of memorization, understanding and application that will appear on the final exam in a few shorts months is particularly mysterious to me. Because of this, class is starting to transform from a purely experiential learning process, to a place where I mentally try to answer the every question being asked and then evaluate my performance. I wonder if I should fight this tendency; I think I may absorb more if I just focused on the flow of class. But, as I said, doubt has set in and I find myself instinctively scrambling for any way to alleviate the doubt.
Why is this feeling especially acute in Civ Pro? Partly, I think, because the Civ Pro still feels more foreign and less familiar than what we are learning in my common law classes; partly because the material is so dense and so time-consuming that I have simply left myself less time for synthesis.
Next week brings a most welcome fall break. In addition to getting some rest, I hope to spend some time working on synthesizing and outlining the Civ Pro material I have learned so far. I don’t think my expectations are unrealistic; I don’t hope to feel like I have everything mastered by the end of the week. What I do hope, however, is to get a handle on my confusion. Maybe next time I post, even if I can’t produce a great insight, I will be grounded enough in my own confusion to express a coherent concern. --Crash
Monday, October 15, 2007
The ABA Journal reports that Civ Pro Helps Joel Steinberg overturn a $5 M Award. The article begins: "The law of collateral estoppel has resulted in a partial victory in New York’s highest court for disbarred lawyer Joel Steinberg, convicted of manslaughter for killing his adopted daughter." Law.com describes the procedural history more here and quotes the critical passages from the opinion:
In order to invoke collateral estoppel there "must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling," the Court wrote, citing Buechel v. Bain 97 NY2d 295 (2001).
The jury in Steinberg's criminal trial was not required to determine whether Lisa had been abused in the months leading up to the night of her death and it cannot be said that the issue was "necessarily decided," as Justice Nardelli ruled when awarding summary judgment on the causes of action based on past abuse, the court ruled.