Wednesday, April 30, 2008

D.C. Circuit Joins the Twombly Fray

Prof. Scott Dodson has written for us before on Twombly (and other subjects).  He has this to say about a recent D.C. Circuit case: 

 There has been much discussion on the impact of Bell Atlantic v. Twombly, which set a “notice-plus” standard under Rule 8 for antitrust conspiracy claims.  Commentators (including myself) have written and blogged about it (see my bibliography here), and the circuits are beginning to weigh in as well, substantially—if not uniformly—interpreting Twombly as having changed the pleading landscape beyond antitrust.

 Today, the D.C. Circuit, in Aktieselskabet AF 21 v. Fame Jeans, weighed in with a minority view.  Judge Brown, writing for herself and Judges Henderson and Rogers, wrote “We conclude that Twombly leaves the long-standing fundamentals of notice pleading intact.”  The court stated that Twombly did not mean to “tighten pleading standards.”  Instead, Twombly is confined to its facts: “Twombly determined that a certain set of factual allegations did not support an inference that the defendants conspired in violation of the Sherman Act. . . . In sum, Twombly was concerned with the plausibility of an inference of conspiracy, not with the plausibility of a claim.”  The D.C. Circuit relied upon Twombly’s own language, Erickson v. Pardus, the Federal Forms, and pre-Twombly cases like Swierkewicz v. Sorema.

 I confess that my own interpretation of Twombly is less certain than the D.C. Circuit’s, but I welcome its voice to the discussion.  It presents a plausible (pun intended) interpretation of Twombly. It does deepen the fracture among the circuits, but that is Twombly’s fault, not the circuits’, and it just goes to show how badly the Supreme Court needs to clarify exactly what it meant in Twombly.  Perhaps now that the circuit disagreement is becoming more pronounced, the Supreme Court will take up that task.

 Conflict disclosure: I was a consultant on the Twombly portion of the briefs for the appellant in Aktieselskabet, whose argument for a limited reading of Twombly was accepted by the D.C. Circuit.

April 30, 2008 | Permalink | Comments (1) | TrackBack (1)

Monday, April 28, 2008

Justice Scalia and 60 Minutes

Last night, 60 Minutes broadcast its interview with Justice Scalia.  You can read a short piece on the interview and watch about thirty minutes of interview footage here.  Below is a transcript of a portion of Lesley Stahl's introduction.--Counseller

Not many Supreme Court justices become famous, but Antonin Scalia is one of the few. Known as "Nino" to his friends and colleagues, he is one of the most brilliant and combative justices ever to sit on the court and one of the most prominent legal thinkers of his generation.

April 28, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, April 25, 2008

"I try not to read that many cases"

In case you haven't seen it, check out this story, which involves the following exchange at a recent 5th Circuit oral argument:

Judge: You don’t know Morgan?
Phipps: Nope.
Judge: You haven’t read it?
Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh,
Ledbetter, I read Ledbetter, and I read that one that they brought up last night.
I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the
one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t
think it applies.
Judge: I must say, Morgan is a case that is directly relevant to this case. And for you
representing the Plaintiff to get up here—it’s a Supreme Court case—and say
you haven’t read it. Where did they teach you that?Gavel_15
Phipps: They didn’t teach me much, Your Honor.
Judge: At Tulane, is it?
Phipps: Loyola.
Judge: Okay. Well, I must say, that may be an all time first.
Phipps: That’s why I wore a suit today, Your Honor.
Judge: Alright. We’ve got your attitude, anyway.

(Hat tip to the Legal Profession Blog)  --RR 

April 25, 2008 | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 23, 2008

Petitions to Watch

SCOTUS Blog has a recurring feature called Petitions to Watch, which is an attempt to predict the petitions the court is likely to grant.  Of particular interest to our readers will be the petitions in two cases involving federal court jurisdiction issues--Perez v. City of Miami Beach, which the court will consider at its April 25 conference, and Centerior Energy Corp. v. Milkulski, which the Court will consider at its May 8 conference.  The links above are to the petitions in each case.  SCOTUS Blog has additional information on all the petitions considered at the April 25 and May 8 conferences, including briefs in opposition and the underlying opinions.--Counseller

April 23, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, April 21, 2008

What Twombly and Mead have in Common

Prof. Amy J. Wildermuth recently posted an essay on the Northwestern Colloquy, titled What Twombly and Mead Have in Common.  Thanks to Editor Kristin Feeley for the heads-up and the following summary:

Professor Amy Wildermuth discusses the similarity between the Supreme Court cases Twombly and Mead. She analyses how both decisions, written by Justice Souter, appear to state a relatively clear rule that fundamentally alters procedural law, but then discusses exceptions or additions that could swallow the general rule. She concludes that the Supreme Court should revise either Federal Rule of Civil Procedure Rule 8 or Rule 9 to clarify the confusion that has resulted from Twombly.


April 21, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, April 18, 2008

DDL on Judicial Notice

Over at Drug & Device Law, Beck and Herrmann wrote extensively yesterday about judicial notice in the preemption context.  It's always interesting for me to read the DDL crew's take on procedural matters as they arise in sophisticated litigation, and it's safe to say those folks are as savvy with the procedural mechanisms as they are with the substantive law.  In the linked post, for example, they reevaluated their general strategy of not raising preemption through motions to dismiss (a strategy that arises because of the 12b6 standard), and explained that judicial notice in their world often allows a court to review more relevant stuff than just the pleadings.


April 18, 2008 | Permalink | Comments (0) | TrackBack (1)

Thursday, April 17, 2008

Taylor v. Sturgell OA Transcript

Thanks to the fine folks at SCOTUS Blog you can read the transcript of yesterday's oral argument in Taylor v. Sturgell here.  The court had lots of questions for both petitioner and respondent, and the discussion raises the possibility of a remand to determine whether there was collusion between the parties to the first and second suits.  There certainly seems to have been a relationship between the parties at some point, but key questions for the Court will be when did that relationship need to exist and what exactly did it need to be for res judicata to prohibit the second suit.--Counseller

April 17, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 16, 2008

Virtual Representation

The Supreme Court will hear argument this morning in Taylor v. Sturgell.  The question in the case, which has created a circuit split, is whether a person who was not a party to previous litigation and has no legal relationship to any of the parties can nevertheless be bound by the judgment under the virtual representation strain of res judicata.  SCOTUS blog has more information on the argument here, and you can read the underlying opinion of the DC Court of Appeals here.--Counseller 

April 16, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2008

Summary Judgment Articles

The Iowa Law Review recently hosted a symposium on procedural justice.  One subtopic was Summary Judgment and Seventh Amendment Concerns.  SSRN links appear below to the work of the panelists:


April 15, 2008 | Permalink | Comments (0) | TrackBack (1)

Friday, April 11, 2008

Scalia "Not a Nut"

Justice Scalia is out promoting a new book he co-authored with Bryan A. Garner titled Making Your Case: The Art of Persuading Judges and generating newsworthy quotes at a rapid clip.  In this ABA Journal piece, Scalia is quoted as saying to a group of students at Roger Williams University law school that he is a "textualist, I am an originalist. I am not a nut."  Scalia is quoted here as saying that the concept of separation of church and state is a lie.  He said, "If you want to enact a statute that says the president can never say ‘God bless America,’ then I have no problem with that.  Just don’t tell me that the Constitution prohibits it."--Counseller

April 11, 2008 | Permalink | Comments (1) | TrackBack (0)

Thursday, April 10, 2008

Electronic Discovery

You may have already noticed this new publication (perhaps because of the fine work of the folks over at the Mass Tort Litigation Blog), but the Rand Corporation has issued a report on electronic discovery authored by James N. Dertouzos, Nicholas M. Pace, Robert H. Anderson.--Counseller   

April 10, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 9, 2008

Legal Education Questions

At, there's quite a conversation ongoing about what law schools do, what they should do, and what they can realistically expect to do.  Dean Chemerinsky's post "A law school for the 21st century" is a good place to start.  You can find an updating guide to the conversation here at Moneylaw. --RR

April 9, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 8, 2008

A Couple Things You Might Have Missed

Take a look at this post and the accompanying links over at Appellate Law & Practice about the recent  press the Second Circuit Clerk's office has been receiving.  Also, click here to check out Howard Bashman's post and link on Judge Richard A. Posner's new book, "How Judge's Think."--Counseller

April 8, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2008

New Supplemental Jurisdiction Article

The Florida Law Review has published Prof. Douglas Floyd's latest article, Three Faces of Supplemental Jurisdiction After the Demise of United Mine Workers v. Gibbs.  With your Westlaw password, you can access the full article here.--Counseller 

April 7, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2008

"What is the Erie Doctrine?"

Click here to read Cincinnati Prof. Adam Steinman's recent article: What is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?).  The abstract follows:

As when Erie Railroad v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in large part to federal courts' comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. Last Term's decision in Bell Atlantic v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a surprisingly straightforward argument that the Erie doctrine requires federal courts to follow state-law standards on summary judgment, class certification, and pleading. This argument has strong support in Supreme Court case-law and the black-letter framework for resolving Erie issues, yet it would significantly recalibrate the conventional understanding of judicial federalism in civil adjudication. Ironically, the 2005 Class Action Fairness Act (CAFA)--whose expansion of federal diversity jurisdiction over high-stakes civil litigation was a major political victory for the defense side--strengthens Erie's preference for state law, because it confirms that procedural disparities between state and federal courts cause precisely the kind of forum-shopping and inequitable treatment that Erie aims to prohibit. Because Erie is likely to play a critical role in the politically-charged arena of contemporary litigation, this Article also confronts some of the broader conceptual and theoretical problems that have plagued the Erie doctrine during its first seventy years. It proposes a theory that reconciles the reasoning of Justice Brandeis's Erie opinion with the subsequent evolution of the Erie doctrine and federal judicial power generally. This Article thus provides a coherent doctrinal framework for considering the challenges Erie may face in the years to come.


April 3, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2008

Judge Orders White Lawyers Out of Court

Fulton County Superior Court Judge Marvin Arrington ordered white lawyers out of his courtroom so that he could speak directly to the young black defendants present.  Judge Arrington now admits it was a mistake to exclude the lawyers, but he said he was not thinking about racism.  He said "I didn't want them to think I was talking down to them; trying to embarrass them or insult them; be derogatory towards them and I was just saying 'Please get yourself together.'"  For more information about this story, you can click here and here (includes a video interview with Judge Arrington).  For commentary check out the most recent post on the Appellate Law & Practice blog.  We can all question the wisdom of sermonizing from the bench or separating client from counsel, but I'm curious if any of the lawyers excluded have actually complained of racial discrimination.--Counseller 

April 2, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2008

Underfunded State Courts

Listen to this NPR story about how state courts are trying to provide constitutionally mandated services in the face of significant budget cuts.  While all branches of state government are feeling the economic pinch, state courts are hit particularly hard because the volume of litigation tends to increase during economic downturns.--Counseller   

April 1, 2008 | Permalink | Comments (1) | TrackBack (0)