Thursday, April 2, 2015
Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix entitled Into Litigation’s Black Hole: A Cosmic Solution. Linda reviews Judge Eduardo Robreno’s recent article, The Federal Asbestos Product Liablity Multidistrict Litigation (MDL-875): Black Hole Or New Paradigm?, 23 Widener L.J. 97 (2013).
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.”
Tuesday, March 17, 2015
Thursday, February 26, 2015
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.
Friday, February 13, 2015
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.”
Wednesday, February 11, 2015
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).
Monday, January 26, 2015
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.
Friday, January 16, 2015
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.
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.
Wednesday, December 10, 2014
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.
Friday, December 5, 2014
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:
- Richard Re, Is Fisher v. University of Texas a Precedent on Jurisdiction? (Re’s Judicata)
- Will Baude, The standing problem in Zivotofsky, revisited (Volokh Conspiracy)
Monday, December 1, 2014
Saturday, November 15, 2014
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:
- City of Shelby: New SCOTUS Pleadings Opinion in Visual Context (Colin Starger)
- SCOTUS Per Curiam Procedure Decisions Raise (At Least) As Many Questions As They Settle (Michael Dorf)
- Twombly’s Remorse (Barry Barnett)
Friday, November 14, 2014
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).
Monday, November 3, 2014
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).
Wednesday, October 15, 2014
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.
Monday, October 13, 2014
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.
Wednesday, June 18, 2014
Saturday, May 3, 2014
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.
Friday, March 21, 2014
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).