Wednesday, March 18, 2015

Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)

Over at PrawfsBlawg, Dave Hoffman has a post up on the empirical impact of Twombly and Iqbal. That issue has been hotly debated, but there’s no question that federal courts are continuing to struggle with what those decisions mean for how judges should decide Rule 12(b)(6) motions. A particularly difficult question has been the vitality of pre-Twombly Supreme Court precedents like Conley v. Gibson and Swierkiewicz v. Sorema.

These issues were on display last Friday (the 13th, by the way) as a divided Fourth Circuit panel affirmed the dismissal of an employment discrimination claim in McCleary-Evans v. Maryland Department of Transportation (No. 13-2488). The majority opinion by Judge Niemeyer rejected the plaintiff’s reliance on Swierkiewicz, emphasizing that the Supreme Court in Swierkiewicz had “applied a pleading standard more relaxed than the plausible-claim standard required by Iqbal and Twombly.” In dissent, Judge Wynn argued that the majority had improperly “ignore[d] the factual underpinnings of the Swierkiewicz holding, looking solely to the Supreme Court’s 2009 decision in Iqbal to guide its decision,” and noted that lower federal courts “have no authority to overrule a Supreme Court decision no matter how out of touch with the Supreme Court’s current thinking the decision seems.”

Twombly and Iqbal are problematic decisions in many respects, and diagnosing their flaws is important. Even more important, though, is the question of how courts should be applying Twombly and Iqbal, especially in relation to pre-Twombly Supreme Court case law. Properly understood, Twombly and Iqbal can and should be read to preserve the notice-pleading approach that the Supreme Court repeatedly employed during the half-century before Twombly. I’ve laid out this argument here and here, and explained how the basic framework Iqbal articulated can be applied in a way that is consistent with notice pleading and pre-Twombly precedent. This understanding of Twombly and Iqbal is confirmed by more recent Supreme Court pleading decisions—especially the 2014 decision in Johnson v. City of Shelby—which cast doubt on the presumption that the Court’s pre-Twombly case law even is “out of touch with the Supreme Court’s current thinking.”

I may have more posts on pleading as March marches on, but for now I wanted to address the one—and only—instance where the Twombly and Iqbal opinions directly call into question any aspect of pre-Twombly case law. That, of course, was Twombly’s “retirement” of Conley’s statement that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

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March 18, 2015 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases, Twombly/Iqbal, Weblogs | Permalink | Comments (2)

Tuesday, March 17, 2015

Tidmarsh on Zimmerman on Presidential Settlements

Now available on the Courts Law section of JOTWELL is an essay by Jay Tidmarsh entitled The Settler-in-Chief. Jay reviews Adam Zimmerman’s recent article, Presidential Settlements, 163 U. Pa. L. Rev. (forthcoming 2015).

 

 

 

 

March 17, 2015 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, February 26, 2015

Erbsen on Klerman & Reilly on Forum Selling

Now available on the Courts Law section of JOTWELL is an essay by Allan Erbsen entitled Judicial Competition for Case Filings in Civil Litigation. Allan reviews a recent article by Daniel Klerman & Greg Reilly, Forum Selling, the current draft of which you can find on SSRN.

 

 

February 26, 2015 in Federal Courts, Recent Scholarship, State Courts, Weblogs | Permalink | Comments (0)

Friday, February 13, 2015

Ohio Supreme Court Decision on Standing & Jurisdiction

I have a guest post over at Legally Speaking Ohio about an interesting Ohio Supreme Court case on standing and jurisdiction. The decision is Bank of America v. Kuchta, which Marianna Bettman aptly called “a field day for civil procedure geeks.”

 

 

February 13, 2015 in Adam Steinman, Recent Decisions, Standing, State Courts, Subject Matter Jurisdiction, Weblogs | Permalink | Comments (0)

Wednesday, February 11, 2015

Walsh on Re on Narrowing Precedent

Now available on the Courts Law section of JOTWELL is an essay by Kevin Walsh entitled Expanding Our Understanding of Narrowing Precedent. Kevin reviews Richard Re’s recent essay, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861 (2014).

 

 

February 11, 2015 in Federal Courts, Recent Scholarship, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Monday, January 26, 2015

Leong on Rush on Federalism and Judicial Diversity

Now available on the Courts Law section of JOTWELL is an essay by Nancy Leong entitled The Federalism Argument for Judicial Diversity. Nancy reviews a recent article by Sharon Rush, Federalism, Diversity, Equality, and Article III Judges: Geography, Identity, and Bias, which was published in the Missouri Law Review. 

 

 

 

January 26, 2015 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, January 16, 2015

Tushnet on the Federal Courts Junior Scholars Workshop

Now available on the Courts Law section of JOTWELL is an essay by Mark Tushnet discussing The Federal Courts Junior Scholars Workshop. Some interesting thoughts on faculty workshops generally, as well as trends in federal courts scholarship.

 

January 16, 2015 in Conferences/Symposia, Federal Courts, Weblogs | Permalink | Comments (0)

Thursday, December 11, 2014

Mulligan on Preis on the Relationship Between Federal Causes of Action, Rights, Remedies, and Jurisdiction

Now available on the Courts Law section of JOTWELL is an essay by Lou Mulligan entitled Federal Causes of Action and Everything that Follows.

Lou reviews a recent article by Jack Preis, How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction, which is forthcoming in the Florida Law Review.

 

 

December 11, 2014 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction, Weblogs | Permalink | Comments (0)

Wednesday, December 10, 2014

EvidenceProf Blog on SCOTUS Decision on FRE 606(b)

Federal Rule of Evidence 606(b) is one of the few evidence rules that usually makes the crossover into Civil Procedure books.  Continuing its expansive reading in Tanner v. U.S. of 606(b)'s general prohibition on juror testimony on an inquiry into the validity of a verdict, the Court yesterday issued Warger v. Shauers, which held that Rule 606(b) barred juror testimony in a proceeding to obtain a new trial on the ground that a juror lied during voir dire.

EvidenceProf Blog had a good post summarizing the case yesterday.

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December 10, 2014 in Recent Decisions, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Friday, December 5, 2014

Standing & SCOTUS

A couple of interesting posts this week about standing issues in some high-profile pending and perhaps-soon-to-be-once-again-pending Supreme Court cases:

 

 

December 5, 2014 in Federal Courts, Standing, Subject Matter Jurisdiction, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Monday, December 1, 2014

Steinman on Larsen on Factual Precedents

Now running on the Courts Law section of JOTWELL is my essay, Judicial Fact Making. I review Allison Orr Larsen’s article, Factual Precedents, 162 U. Pa. L. Rev. 59 (2013).

 

December 1, 2014 in Adam Steinman, Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (1)

Saturday, November 15, 2014

Reaction to SCOTUS Decision in Johnson v. City of Shelby

On Monday we covered Johnson v. City of Shelby, a per curiam Supreme Court decision on pleading that summarily reversed the Fifth Circuit. Here’s some of the coverage of that decision from this past week:

 

 

November 15, 2014 in Recent Decisions, Supreme Court Cases, Twombly/Iqbal, Weblogs | Permalink | Comments (1)

Friday, November 14, 2014

Pfander on Bruhl on the Supreme Court and Lower-Court Precedent

Now available on the Courts Law section of JOTWELL is an essay by Jim Pfander entitled How Lower-Court Precedent Affects Supreme Court Precedent. Jim reviews Aaron Bruhl’s recent article, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014).

 

 

November 14, 2014 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (1)

Monday, November 3, 2014

Vladeck on Richman and Reynolds on Appellate Injustice

Over on the Courts Law section of JOTWELL is an essay by Steve Vladeck entitled Appealing to Injustice. Steve reviews Bill Richman and Bill Reynolds' recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis (Oxford Univ. Press 2013).

 

November 3, 2014 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, October 15, 2014

Epstein on Black & Spriggs on the Depreciation of U.S. Supreme Court Precedent

Over on the Courts Law section of JOTWELL is an essay by Lee Epstein entitled The Depreciation of Precedent. It reviews an article by Ryan Black and James Spriggs that was recently published in the Journal of Empirical Legal Studies.

 

 

October 15, 2014 in Recent Scholarship, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Monday, October 13, 2014

Wasserman on Redish and Aronoff on Judicial Selection and Due Process

Over on the Courts Law section of JOTWELL is an essay by Howard Wasserman entitled Judicial Retention Meets Due Process.

It reviews a recent article by Martin Redish and Jennifer Aronoff, The Real Constitutional Problem with State Judicial Selection: Due Process Judicial Retention and the Dangers of Popular Constitutionalism, which will appear in the William & Mary Law Review. 

 

 

October 13, 2014 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, June 18, 2014

ABA Pretrial Practice and Discovery Committee Spring Newsletter

The Pretrial Practice and Discovery Committee of the Section of Litigation of the American Bar Association has issued its
 
Spring 2014, Vol. 22 No. 2
TABLE OF CONTENTS
______________________________________________________________________
___________________________________
Articles »
The Changing Landscape of General Jurisdiction Post-Bauman
By Adam W. Braveman
This decision will have an immense impact on a foreign corporation's amenability to bring suit in U.S
courts.
 
"Self-Serving Testimony" and Summary Judgment Standards
By Jeffrey G. Close
Is there a split between the Fifth and Seventh Circuits?
 
The Problem of the Old Deposition and a New Party at Trial
By Michael Lowry
A deposition needs to be admissible, and that may depend on who is a party at the time of trial.
 
Supreme Court's CAFA Decision Changes Law in Fifth Circuit
By Paul Thibodeaux and Danny Dysart
The Court's decision on CAFA removal of parens patriae mass-action suits and how it impacts future
mass-tort litigation.
 
News & Developments
»
NV Court Expands Mandate of Production of Memory-Refreshing Documents
The mandate now applies to depositions as well as in-court hearings.
 
Considering a 30(b)(6) Deposition to Explore E-Discovery Methods?
A couple of recent decisions address a party's ability to use a Rule 30(b)(6) deposition to inquire about an
opponent's e-discovery methodology.
 

June 18, 2014 in Discovery, Weblogs | Permalink | Comments (0)

Saturday, May 3, 2014

Supreme Court Approves Amendments to Hearsay Rules

Professor Colin Miller's EvidenceProf Blog reports on the Supreme Court's approval of amendments to the Federal Rules of Evidence that deal with hearsay: 801(d)(1)(B) (prior consistent statements), and 803(6), (7), and (8) (burden of proof in showing untrustworthiness of records of regularly conducted activities and public records).  The amendments will take effect on December 1, 2014 unless Congress takes other action.

May 3, 2014 in Supreme Court Cases, Weblogs | Permalink | Comments (0)

Friday, March 21, 2014

Coleman on Reinert on Meritless Litigation

Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Recognizing the Value of Failure in Civil Litigation. It reviews a recent article by Alex Reinert (Cardozo), Screening Out Innovation: The Merits of Meritless Litigation, 89 Ind. L. J. (forthcoming).

 

March 21, 2014 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Monday, February 17, 2014

Tidmarsh on Civil Procedure Reforms in the U.K.

Now on the Courts Law section of Jotwell is a review by Jay Tidmarsh (Notre Dame) entitled Jackson.

It’s not about the Yankees slugger, or the Johnny Cash & June Carter classic, or the capital city of Mississippi. It’s about recent procedural reforms in the United Kingdom, initiated by – and named for – Lord Justice Rupert Jackson. 

 

February 17, 2014 in International/Comparative Law, Recent Scholarship, Weblogs | Permalink | Comments (0)