Tuesday, October 5, 2010
Prof. David Achtenberg (UMKC) has rolled out the website Petition to Decision. From the announcement:
Petition to Decision is a comprehensive digital archive of all the available papers of the Supreme Court justices relating to selected civil rights cases. It may be interesting to those who study the internal workings of the Court as well as to those with a particular interest in civil rights litigation. The website, which contains as many as 1800 pages of documents per case, can be accessed at: http://www.petitiontodecision.com/
Petition to Decisionpresents an interactive timeline of the various cases, identifying every step in the justices’ decision-making process and linking each step to digital copies the relevant internal papers. A typical case file includes the pool memoranda regarding certiorari (together with annotations by the various justices and their clerks), notes prior to and during the cert conference, various notes and memoranda prior to oral argument, justices’ oral argument notes, justices’ records of what took place at the merits conference, miscellaneous memoranda to and from the justices discussing the case, and annotated drafts of the various opinions. (Click here for sample documents.) The timelines make it possible to study the Court’s handling of the cases from the filing of the petition for certiorari until announcement of the final decision. (Click here for an example of a timeline.)
For more information about Petition to Decision, you can reach Professor Achtenberg at AchtenbergD@umkc.edu.
Monday, October 4, 2010
Now in print in the latest issue of the Duke Law Journal is an article by Professor Arthur Miller (NYU) entitled From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1 (2010). Here’s the abstract:
This Article discusses the effects of the recent Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on the model of civil litigation established by the Federal Rules of Civil Procedure in 1938. Those Rules created a procedural system giving a litigant, using plain language and presenting the essential elements of a claim for relief, an opportunity to pursue discovery and have his or her rights adjudicated on the merits. This Article discusses the basic values underlying that system and its importance in promoting broad citizen access to our federal courts and enabling the private enforcement of substantive public policies.
The Article then discusses how Twombly and Iqbal have destabilized both the pleading and the motion-to-dismiss practices as they have been known for over sixty years. The cases are seen as the latest in a sequence of increasingly restrictive changes during the last quarter century. These have created expensive and time-consuming procedural stop signs that produce earlier and earlier termination of cases, thereby increasingly preventing claimants from reaching trial—particularly jury trial. This Article contends that there has been too much attention paid to claims by corporate and other defense interests of expense and possible abuse and too little on citizen access, a level litigation playing field, and the other values of civil litigation. Much fine-grained empirical research is needed to separate fact from fiction.
This Article finds that setting significantly higher and more resource-consumptive procedural barriers for plaintiffs and moving to the ever-earlier disposition of civil suits—now exacerbated by the two Supreme Court decisions—runs contrary to many of the values underlying the Federal Rules. Concluding that the Court’s preoccupation with defense costs is misplaced and its belittlement of case management as a way of cabining those costs is unpersuasive, the Article offers several proposals that the Advisory Committee on Civil Rules (or Congress) might consider to reverse recent developments and ameliorate some of their negative aspects.
Ultimately, the Article asks a basic question: after Twombly and Iqbal, is our American court system still one in which an aggrieved person, however unsophisticated and under-resourced he may be, can secure a meaningful day in court? Finding that the important values of civil litigation are in jeopardy, this Article urges that the egalitarian, democratic ideals espoused by the original Federal Rules not be subordinated to one-dimensional claims of excessive litigation costs and abuse that have not been validated.
PS: Miller writes that his title “seeks to evoke the image of Joe Tinker, Johnny Evers, and Frank Chance, Hall of Fame Chicago Cubs infielders in the early years of the twentieth century, whose remarkable double-play skills were immortalized in a poem by Franklin Pierce Adams in the New York Evening Mail on July 12, 1910.” Particularly timely as we gear up this week for baseball’s post-season (exactly 100 years later).
Toyota has filed motions to dismiss in many of sudden acceleration cases including a case recently filed in Virginia. They argue that the plaintiffs have failed to state a claim because they cannot identify a specific defect which caused the accelaration, therefore failing to meet the "heightened" Twombly/Iqbal standard.
The National Law Journal reports here.