May 21, 2010
AALS Mid-Year Meeting: Civil Procedure Workshop
If you're interested in attending the Association of American Law Schools' Workshop on Civil Procedure (New York City, June 10-12), today is the deadline for discounted "Early Bird" registration. More details and the program schedule are available here. Registration information is available here.
May 20, 2010
Iqbal, Twombly, and the NFL
Iqbal-Twombly anniversary week continues with this decision from the Third Circuit. Mayer v. Belichick affirms the district court's dismissal of a claim by a Jets season ticket holder (New York, not Winnipeg) arising out of the Spygate videotaping scandal.
For additional coverage, see How Appealing.
May 18, 2010
Ashcroft v. Iqbal Turns One
The Supreme Court’s controversial pleading decision Ashcroft v. Iqbal celebrates(?) its first anniversary today. Coincidentally, today is also the day that my article, The Pleading Problem, 62 Stanford L. Rev. 1293 (2010), is officially in print. Here’s the abstract:
Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This Article provides that theory. It develops a new paradigm -- plain pleading -- as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference.
This approach is able to reconcile Twombly and Iqbal with pre-Twombly authority. Indeed, a careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbal did not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a misunderstood fifty-year-old phrase whose real meaning was never called into question. Furthermore, Iqbal's two-step analysis confirms that the problematic plausibility standard employed in Twombly and Iqbal is neither the primary inquiry at the pleadings phase nor a necessary one. The threshold issue is whether a crucial allegation in a complaint may be disregarded as "conclusory"; only then does the "plausibility" of an entitlement to relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly sources -- the Federal Rules, their Forms, and Supreme Court decisions that remain good law -- foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase.
The citation count data in the article's appendix reveals that Iqbal has had quite a prolific first year on the books. It is already among the most frequently cited Supreme Court decisions of all time.
11 Circuit Drills Twiqbal Through Dentists' Class Action
The 11th Circuit has nixed a RICO class action brought by dentists against the insurers who reimburse them for services on the grounds that the complaint does not meet the Twiqbal plausibility requirements.
Aside from being an interesting decision, I couldn't help but be amused by bad dentist related puns in this news report from the National Law Journal:
[The plaintiff's lawyer] said that he sensed defeat during oral arguments. "It was clear from the minute I opened my mouth," he said. "The Court of Appeals was a buzzsaw."
Silver on Aggregate Litigation, Ethics and Innovation
Charles Silver (Texas) has posted on SSRN his forthcoming essay, Ethics and Innovation, which will appear in the George Washington Law Review. Here's the abstract:
Using the familiar insight that principals and agents can jointly gain by reducing agency costs, this essay argues (1) that lawyers hoping to attract clients should seek to improve the quality of representation in mass tort cases and to signal their reliability and honesty; (2) that lawyers have sought to adopt innovations that would reduce agency costs, including governance arrangements designed to address monitoring problems, facilitate collective choice by clients, and provide in advance for the allocation of settlement funds; (3) that courts, relying on state bar rules and other laws designed for single-client representations, have undermined lawyers’ efforts by stifling these innovations; and (4) that, by preventing lawyers from innovating, judges have insulated agency problems in mass tort representations from attack and have disserved clients despite seeking to protect them.
This essay comments on articles by other authors that were presented at a conference on the American Law Institute’s Project on the Principles of Aggregate Litigation, of which the author is Associate Reporter. The papers and this essay will be published in a symposium issue of the George Washington Law Review in 2011.
(Hat Tip: Larry Solum)
May 17, 2010
Samahon on Impeachment as Judicial Selection
Tuan Samahon (Villanova) has posted Impeachment as Judicial Selection? to SSRN.
Ideological judicial selection encompasses more than the affirmative nominating, confirming, and appointing of judges who pre-commit to particular legal interpretations and constructions of constitutional text. It may also include deselection by way of impeachment and removal (or at least its threat) of judges subscribing to interpretations and constructions of the Constitution that one disapproves. This negative tactic may be particularly effective when deployed against judges on closely divided collegial courts, such as the U.S. Supreme Court and the U.S. courts of appeals, where personnel determine voting majorities and, in turn, majorities determine case outcomes. The Pickering-Chase, Fortas-Douglas, and Christian Coalition impeachments and threats of impeachment illustrate that the use or threat of this tactic is more common than might be supposed. Indeed, recent calls for the removal of Circuit Judge Jay Bybee demonstrate the continuing allure of impeachment as judicial selection.
This Article examines the phenomenon of impeachment as judicial selection through Professors Tushnet’s and Balkin’s framework of “constitutional hardball.” In the case of impeachment as judicial selection, Congress plays constitutional hardball by claiming that it is an appropriate tool for political control and a fraternal twin to the modern appointments process. This Article details prior episodes of impeachment as judicial selection. It explains why the idea of impeachment as an ex post selection tool proves so tempting. It then considers those legal arguments that justify and contest the claims of this variety of constitutional hardball. Further, the Article makes the case that, contrary to conventional wisdom, constitutional and political developments make impeachment a closer alternative to transformative, affirmative selection than in the past. This relative feasibility heightens the fool’s gold allure of impeachment as judicial selection. Actually impeaching for judicial selection, however, would yield results that many would consider as untoward and unacceptably intruding on judicial independence and the rule of law. This Article briefly considers those significant costs.
Shapiro on the Role of Supreme Court Law Clerks
Carolyn Shapiro (Chicago Kent) has posted The Law Clerk Proxy Wars: Secrecy, Accountability, and Ideology in the Supreme Court to SSRN.
This piece provides an in-depth review and analysis of two recent books about Supreme Court law clerks, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, by Todd C. Peppers, and Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David L. Weiden. In addition, the essay addresses a question so obvious that it is rarely asked – why is there so much curiosity about Supreme Court law clerks in the first place? In the essay, I analyze a widespread concern – and one discussed in both books – that law clerks have “too much” influence or even that they are the real decisionmakers on the Court. I argue that in fact this concern is a proxy for two important questions: how does the Court decide what cases to take and what role does (and should) ideology play in the work of the Supreme Court.
With respect to the process of selecting cases to review on the merits – the certiorari (cert) process – I argue that a careful analysis of the process reveals that the likelihood is quite low that the Court denies cert petitions the justices would grant if they reviewed the petitions themselves instead of relying largely on their law clerks. I also argue that with respect to the cert process, the Court’s extreme secrecy does not serve it well. More information about how the process works and why the Court denies or grants cert in particular cases or types of cases would benefit the not only the bar and the public, but also the Court itself.
Second, I argue that concern about undue ideological influence by law clerks is really a displaced anxiety about the much thornier question of the appropriate role of ideology in Supreme Court judging. This anxiety arises in part from mixed messages about whether the Court is a political entity making important decisions about subjects on which there may not be social consensus or whether it is, as Chief Justice Roberts put it at his confirmation hearings, a neutral umpire calling balls and strikes. People seek to alleviate their anxiety by trying to figure out how the justices do their work – leading to the intense curiosity about what law clerks do. More candor about the inherently political nature of at least some of the Court’s work might not entirely eliminate the anxiety, but it would refocus it from the largely tangential question of law clerk influence onto difficult but crucial questions about the relationship between Supreme Court jurisprudence and ideology and about the proper role of the Court in our democracy.
May 16, 2010
Hendershot and Tecklenburg on Controlling for District Court Judges' Preferences
Marcus Hendershot and Christian Tecklenburg (University of Florida) have posted Controlling for District Court Judges' Preferences to SSRN.
This study invokes the common space scores of executives and senators to generate a number of alternative preference point positions for U.S. District Court judges (1901-2006). Tests of these continuous measures against a null case fact specification suggest that the legal model always proves an effective predictor of decisions, but that ideological influences have incrementally grown throughout the last century. Continuous preference measures that assume a traditional norm of senatorial courtesy tend to be robust in limited samples of more recent outcomes. However, measures that account for cyclical changes in inter-branch appointment relationships are more effective for temporally lengthy large N samples. The magnitude of these ideological effects is modest, but not unsubstantial. During the recent era of independent executive vetting practices, the likelihood of a conservative decision is approximately 78 to 85% for Democratic appointees, and 85 to 90% for Republican appointees.