Saturday, March 13, 2010

Nichol on Equal Access to the Civil Justice System

Professor Gene R. Nichol, Jr. (University of North Carolina School of Law) posted "Judicial Abdication and Equal Access to the Civil Justice System" on SSRN.  It will be published in Case Western Reserve Law Review.

The abstract states:

The massive chasm which exists between American claims of equal justice and the reality of a civil adjudication system that excludes millions because they can't afford to hire a lawyer is well known. This article explores one cornerstone of our national embarrassment - "poor people's justice" - the decisions and the obligations of judges. Judges - state and federal - shoulder a singular and defining role in creating, maintaining and assuring open, effective and meaningful access to the system of justice they administer. United States Supreme Court justices, inferior federal court judges, state supreme court justices, and state trial and appellate jurists work atop a massive, monopolistic, government-proffered, violence-secured system for the orderly resolution of civil disputes. They set, quite literally, the constitutive markers of legitimate judicial decision-making. But by ignoring the exclusion from our civil regime which occurs for those unable to afford counsel, American judges have abdicated this central mission.


March 13, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, March 12, 2010

Pleading Standards and Bernie Madoff

The SEC's civil action against defendants allegedly involved in the Madoff ponzi scheme ran up against federal pleading standards in a recent decision from the Southern District of New York. The case is SEC v. Cohmad Securities Corp., No. 09-CV-5680, and docket information is available here. Judge Stanton's decision is at 2010 WL 363844 or 2010 U.S. Dist. LEXIS 8597. Here are some excerpts:

"[N]owhere does the complaint allege any fact that would have put defendants on notice of Madoff's fraud. Rather, the complaint supports the reasonable inference that Madoff fooled the defendants as he did individual investors, financial institutions, and regulators.

. . .

[T]he SEC has failed to allege facts giving rise to a plausible inference of the Cohns' or Jaffe's fraudulent intent, and the securities fraud claims against them are dismissed. Since the SEC has failed to plead the Cohns' or Jaffe's fraudulent intent (and it does not argue that Madoff's intent can be imputed to Cohmad), the securities fraud claims against Cohmad are dismissed as well."

The SEC was granted leave to replead.


(Hat Tip: Paul Stancil)

March 12, 2010 in Current Affairs, Recent Decisions, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Thursday, March 11, 2010

Ground Zero Workers cases set for settlement

The New York Times reports here and the New York Law Journal reports here.


March 11, 2010 in In the News, Mass Torts, MDLs | Permalink | Comments (0) | TrackBack (0)

Hartnett on Responding to Twombly and Iqbal

Professor Edward Hartnett (Seton Hall) has posted on SSRN his essay Responding to Twombly and Iqbal: Where Do We Go from Here?, to be published later this month in the Iowa Law Review Bulletin. Here's the abstract:

As reflected in the title of their article, Inventing Tests, Destabilizing Systems, Professors Clermont and Yeazell contend that the Supreme Court in Twombly and Iqbal invented a “new and foggy test” for judging the sufficiency of a complaint and “have destabilized the entire system of litigation.” As they see it, the Court’s approach is “thoroughly new,” and the Court “effectively creat[ed] a civil procedure hitherto foreign to our fundamental procedural principles.”

Elsewhere, I have offered a more-optimistic take on these cases, emphasizing the connections these decisions have with prior law and suggesting ways in which they can be tamed. See Taming Twombly—Even After Iqbal, 158 U. Pa. L. Rev. 473 (2010). Rather than rehash those arguments here, I instead take up Professors Clermont and Yeazell’s challenging question, “Where Do We Go from Here?” and address several of the proposals made to respond to Twombly and Iqbal by statute or rule amendment.

I also offer my own proposal, which focuses on the core issue at stake in debates about Twombly and Iqbal: should a plaintiff be able to obtain discovery in an effort to uncover evidence without which he or she cannot prevail? My proposal has something to offer plaintiffs, defendants, and the judicial system. I believe it represents an improvement over the current law and better than other proposed legislative and rulemaking responses to Twombly and Iqbal. Surely it could be improved by the perspectives of others in the academy, on the bench, or at the bar. Nevertheless, in deciding where we go from here, stumbling in the right direction is better than standing still or trying to go backwards.

And from the text, here is Professor Hartnett's proposal to amend the Federal Rules of Civil Procedure. He argues for adding the following language to Rule 12:

Rule 12(j): Allegations Likely To Have Evidentiary Support After a Reasonable Opportunity for Discovery

If, on a motion under Rule 12(b)(6) or 12(c) that has not been deferred until trial, the claim sought to be dismissed includes an allegation specifically identified as provided in Rule 11(b)(3) as likely to have evidentiary support after a reasonable opportunity for discovery, the court must either (1) assume the truth of the allegation, or (2) decide whether the allegation is likely to have evidentiary support after a reasonable opportunity for discovery. In deciding whether an allegation is likely to have evidentiary support after a reasonable opportunity for discovery, the court must consider the parties‘ access to evidence in the absence of discovery and state on the record the reason for its decision.

If the court decides that the allegation is likely to have evidentiary support after a reasonable opportunity for discovery, it must allow for that discovery, under the standards of Rule 26, and deny the motion to dismiss. If the court decides that the allegation is not likely to have evidentiary support after a reasonable opportunity for discovery, the court must treat the motion as one for summary judgment under Rule 56, and provide all parties a reasonable opportunity to present all the material that is pertinent to the motion.


March 11, 2010 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Consolidating the Toyota Lawsuits: Let the Jostling Begin

Almost as predictable as the fact that Toyota is facing a multitude of lawsuits is the fact that lawyers will begin an intense campaign to determine where and how the lawsuits will be consolidated, and which lawyers will win the prize of leading the charge.

The National Law Journal reports here that around 150 met in Chicago to discuss strategies for going forward, and to jockey for who will take the lead in the litigation.  Thus far, the fault lines have developed around arguments concerning venue, with some lawyers supporting the Central District of California where Toyota has its headquarters and where a District Judge is already hearing twelve cases against Toyota, whereas others favor the Western District of Kentucky (site of a large manufacturing plant) or the Eastern District of Louisiana (MDL district extraordinaire).


March 11, 2010 in Mass Torts, MDLs | Permalink | Comments (0) | TrackBack (0)

Spencer on Iqbal and Restrictive Procedure

Professor Benjamin Spencer (Washington & Lee University School of Law) posted "Iqbal and the Slide Toward Restrictive Procedure" on SSRN.  It will be published in the Lewis & Clark Law Review.

The abstract states:

Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscores the substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal’s factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits judges to reject pleadings based on their own predilections or “experience and common sense.” Such an approach undermines consistency and predictability in the pleading area and supplants, in no small measure, the traditional fact-finding role of the jury. Second, the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Thus, although Iqbal ultimately does not go much further than Twombly in reshaping civil pleading standards, the decision is an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years.


March 11, 2010 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Choi, Gulati, & Posner on What Federal District Judges Want

Professors Stephen J. Choi (NYU School of Law), G. Mitu Gulati (Duke University School of Law), and Eric A. Posner (University of Chicago Law School) posted "What do Federal Judges Want? An Analysis of Publications, Citations, and Reversals" on SSRN.  

The abstract states:

We report evidence from a dataset of federal district judges from 2001 to 2002 that district judges adjust their opinion-writing practices to minimize their workload while maximizing their reputation and chance for elevation to a higher court. District judges in circuits with politically uniform circuit judges are better able to predict what opinions will get affirmed by the circuit court, leading to higher publication rates and a higher affirmance rate. In contrast, district judges in circuits with politically diverse circuit judges are less able to predict the preferences of the reviewing circuit court panel, leading district judges to publish fewer but higher quality opinions in an effort to maximize their affirmance rate.


March 11, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 10, 2010

Abebe and Posner on Foreign Affairs Legalism

Daniel Abebe (University of Chicago Law School) and Eric Posner (University of Chicago Law School) have posted Foreign Affairs Legalism: A Critique to SSRN.

Foreign affairs legalism, the dominant approach in academic scholarship on foreign relations law, holds that courts should abandon their traditional deference to the executive in foreign relations, and that courts and Congress should take a more activist role in foreign relations than in the past. Foreign affairs legalists argue that greater judicial involvement in foreign relations would curb executive abuses and promote international law. We argue that foreign affairs legalism rests on implausible assumptions about the incentives and capacities of courts. In U.S. history the executive has given more support to international law than the judiciary or Congress has; this suggests that foreign affairs legalism would retard rather than spur the advance of international law.


March 10, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 9, 2010

Wanted: Law Professors To Sign On To SCOTUS Amicus Brief

See announcement below:


Max Huffman (Indiana) and Austen Parrish (Southwestern) have written an amicus brief in the case British American Tobacco v. United States in support of a petition for cert.   The cert. petition is part of a massive case brought by the U.S. against the tobacco companies. Various cert. petitions have been filed, including a government petition seeking recovery of a $280 billion disgorgement award.  Details about the underlying case can be found on SCOTUSblog


The amicus brief focuses only on the narrow issue of how a court should approach issues of extraterritorial jurisdiction.  They are looking for full-time law professors at ABA-accredited law schools to sign on to the brief.  If you would consider signing on to the amicus brief, please email Austen Parrish at, and he can send you a draft for review. There’s a tight deadline and the brief will be finalized this week: the deadline for providing notice to file the amicus is this Friday and the brief will likely go to the printer early next week.  Because the effects test applies in a number of contexts (antitrust, securities, trademark, labor law, environmental law, criminal law etc.), the D.C. Circuit's decision could have far-reaching implications. This would be a good opportunity for the Court to clarify what is now a confused area of law.

Continue reading

March 9, 2010 in Supreme Court Cases | Permalink | Comments (0) | TrackBack (0)

Monday, March 8, 2010

SCOTUS Grants Cert in Vaccine Preemption Case

The BNA reports here:

Bruesewitz v. Wyeth, No. 09-152. Does Section 22(b)(1) of the 1986 National Childhood Vaccine Injury Act, which states that "[n]o vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine ... if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings," preempt all vaccine design defect claims, whether based on strict liability or negligence?


March 8, 2010 in Supreme Court Cases | Permalink | Comments (0) | TrackBack (0)

Chin and Lindenbaum on the SCOTUS Special Docket

Gabriel Chin (University of Arizona School of Government and Public Policy) and Sara Lindenbaum (University of Arizona College of Law) have posted Reaching Out to Do Justice: The Rise and Fall of the Special Docket of the U.S. Supreme Court to SSRN.

In 1964-1967, the Supreme Court put three complicated cases involving individuals in a permanent state of suspension on what would come to be known as the “Special Docket.” Under this largely unknown feature of the Court’s practice, the cases were held without decision until after the parties involved died in the 1990s. Although the impulse to mercy in these cases was understandable (all involved mental illness and two were capital cases), as a small experiment, it must be adjudged a failure, because there is a reasonable possibility that in each case, just outcomes were not achieved. Assuming that the Court thought judicial intervention was necessary to avoid an unjust outcome, using the normal tools of decision might have been better.


March 8, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Claim Against Donald Rumsfeld Survives Motion to Dismiss (and Iqbal)

Last week Judge Wayne Andersen of the U.S. District Court for the Northern District of Illinois denied former Secretary of Defense Donald Rumsfeld's motion to dismiss a lawsuit that was filed against him by two contractors who allege they were detained and mistreated while in Iraq. The case is Vance v. Rumsfeld, 1:06-cv-06964 (N.D Ill.), and Judge Andersen's opinion can be found here (courtesy of the Legal Times' Blog, which has additional coverage here). The docket is available via Justia or Pacer.

As for last Term's Supreme Court's decision in Ashcroft v. Iqbal, Judge Andersen wrote:

"Iqbal undoubtedly requires vigilance on our part to ensure that claims which do not state a plausible claim for relief are not allowed to occupy the time of high-ranking government officials. It is not, however, a categorical bar on claims against these officials."

Relying on the Ninth Circuit's decision in Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), Judge Andersen concluded that "the allegations of Rumsfeld's personal involvement in unconstitutional activity are sufficiently detailed to raise the right to relief above the speculative level and would survive a motion to dismiss."


March 8, 2010 in In the News, Recent Decisions, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Sunday, March 7, 2010

Act of State Doctrine in Australia

Over at Prawfsblawg, Evan Criddle has a good post about a recent case from the Australian Federal Court that discusses the act of state doctrine.

From the post:

Without attempting to recount the various opinions of the Federal Court (Black CJ, Perram J, and Jagot J) in detail, I would note simply that the court unanimously rejected the government’s argument that the act of state doctrine barred Habib’s claims without definitively addressing the docrine’s theoretical underpinnings.  The panel’s three opinions are interesting, in part, because they draw extensively on the U.S. Supreme Court’s jurisprudence, including lengthy excerpts and discussion of Underhill, Sabbatino, and Kirkpatrick.  It is hard to imagine a U.S. court devoting comparable attention to Australian case law as a guide to the contours of the act of state doctrine.  (For a more detailed summary of the February 25, 2010 Habib ruling, take a look at the Commentary of Ben Batros and Philippa Webb posted on Thursday at EJIL: Talk!)


March 7, 2010 in Federal Courts, International/Comparative Law | Permalink | Comments (0) | TrackBack (0)