Friday, October 29, 2010

Decision of Interest: Twombly/Iqbal in the Eleventh Circuit

Last week the U.S. Court of Appeals for the 11th Circuit issued a significant opinion on federal pleading standards in the wake of the Supreme Court’s decisions in Twombly and Iqbal. The case is Speaker v. U.S. Dept of Health & Human Servs. Centers for Disease Control (“CDC”), No. 09-16154, 2010 WL 4136634 (11th Cir. Oct. 22, 2010). If that caption rings a bell, it’s because the plaintiff is Andrew Speaker, whose quarantine by the CDC in 2007 garnered considerable media attention. Relying on Twombly and Iqbal, the district court dismissed Speaker’s complaint. The 11th Circuit reversed, concluding that Speaker had adequately alleged a violation of the Privacy Act (5 U.S.C. § 552a).

One element of Speaker’s claim was that the CDC, by disclosing Speaker’s medical information, failed to fulfill its record keeping obligation under the Privacy Act. As to this element, the 11th Circuit reasoned (emphasis in original):

Plaintiff Speaker has pleaded enough factual content to “nudge[] [his] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1974. Importantly, Speaker’s allegations are not barren recitals of the statutory elements, shorn of factual specificity. See id. at 555, 127 S. Ct. at 1964-65 (stating that “a plaintiff’s obligation to provide grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do” (quotation marks and brackets omitted)).

Rather, Speaker alleges what the CDC disclosed; namely, “personally identifiable information,” including information relating to his “medical history and his testing and treatment for tuberculosis.” Am. Compl. 13 ¶ 81. Moreover, he alleges when the CDC disclosed this information: namely, “during the time frame of said public press conferences.” Am. Compl. ¶ 83. Speaker’s Amended Complaint narrows the time frame of the CDC’s initial disclosures to a short period in late May 2007. Speaker also expressly identifies one news organization to whom disclosure was made; namely, the Associated Press, which he claims received the leaked information between May 29 and May 31. Id.14 Importantly, Speaker has also alleged with factual specificity how the CDC came into possession of this information. Even the CDC does not dispute that it had the information that Speaker alleges was impermissibly disclosed. And there is no doubt that some entity, or its employees, disclosed Speaker’s identity, since not even the CDC contends that Speaker himself revealed this information before the AP’s May 31 article.

Another element of Speaker’s claim was that the CDC intentionally disclosed his information. The 11th Circuit found that Speaker’s allegations on this element were sufficient because:

Speaker expressly alleges that the CDC’s “unauthorized disclosure” was “intentional” Am. Compl. ¶ 1; see also id. ¶ 82 (stating that improper disclosures were “a result of the deliberate actions of the CDC and its employers or agents”); id. ¶ 83 (alleging that CDC’s disclosures were “part of a media campaign directed toward Mr. Speaker”); id. ¶ 111 (stating that “[a]t all times relevant herein, the CDC acted wilfully and intentionally in connection with the aforementioned disclosures”); id. ¶ 112 (referring to CDC’s unauthorized disclosure as “intentional”).


(Hat Tip: Marjorie Silver)

October 29, 2010 in Recent Decisions, Twombly/Iqbal | Permalink | Comments (0)

Thursday, October 28, 2010

Halberstam and Reimann on Federalism (comparative)

Daniel Halberstam and Mathias Reimann (University of Michigan) have posted Federalism and Legal Unification: A Comparative Empirical Investigation of 20 Legal Systems to SSRN.

How and to what degree do federations produce uniform law within their system? Our comparative empirical study addresses this question comprehensively for the first time by examining legal unification in twenty federal systems around the world. We present the means and methods of legal unification, the degree of legal unification of each system (and of particular areas of the law within each system), and a first attempt to explain the driving forces of legal unity and diversity in federations more generally.


October 28, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Tuesday, October 26, 2010

Sullivan on Iqbal and Employment Discrimination Claims

Prof. Charles Sullivan (Seton Hall) has posted on SSRN a draft of his article, Plausibly Pleading Employment Discrimination, which is forthcoming in the William & Mary Law Review. Here’s the abstract:

The Supreme Court’s unanimous 2002 decision in Swierkiewicz v. Sorema N.A., which took a very permissive approach to pleading discrimination claims, may or may not remain good law after Ashcroft v. Iqbal. As is well known, Iqbal took a restrictive approach to pleading generally under the Federal Rules, and its application to employment discrimination cases could pose serious problems for plaintiffs attempting to get into federal court. Further, there is certainly a tension between Swierkiewicz and Iqbal. This is in part because the former is a strong reaffirmation of notice pleading as it has traditionally been understood while the latter makes clear that “plausible pleading” is something very different. But it also because Iqbal was, after all, a discrimination case (albeit brought under the Constitution rather than a federal statute), and its finding that the discrimination alleged there was not plausibly pled could easily be applied to Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.

Numerous scholars have analyzed Iqbal generally and several have addressed the application of plausible pleading to claims under the antidiscrimination laws. A respectable view is that Swierkiewicz remains good law although the commentators recognize legitimate questions about its continued vitality. This Article, while agreeing that there are readings of both Swierkiewicz and Iqbal that would permit this result, nevertheless explores the contrary possibility: supposing Iqbal sub silentio overrules Swierkiewicz and applies plausible pleading to discrimination claims, what must a plaintiff plead to avoid dismissal for failure to state a claim?

The most obvious response is that plaintiff should plead a prima facie case of discrimination under the traditional McDonnell Douglas Corp. v. Green standard. Although Swierkiewicz held that this was not necessary (in part because there are other ways of proving discrimination), it did not suggest that such pleading would not be sufficient. There are, however, complications with this approach that should be explored. Further, there are at least three alternatives for attorneys who cannot, consistent with Rule 11, allege such a prima facie case. First, the plaintiff might survive a 12(b)(6) motion by pleading “direct evidence” of discrimination. While the term has a checkered history in discrimination jurisprudence, the pleading context suggests a new look at an old concept. Second, the article addresses the possibility of pleading the existence of a “comparator” whose more favorable treatment than plaintiff may make the claim of discrimination plausible.

Third, and perhaps most radically, the article argues that plaintiffs should be able to take the Supreme Court at its word in Iqbal that, in deciding a motion to dismiss for failure to state a claim, a district court must take as true all facts (as opposed to legal conclusions) alleged in the complaint. It proposes that plaintiffs plead the existence of social science research showing the pervasiveness of discrimination. Taken as true, this body of literature may well nudge a particular claim across the border drawn by the Supreme Court between a “possible” claim and a “plausible” one.


October 26, 2010 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (1)

Monday, October 25, 2010

3d Cir. on Preemption of Cellphone Liability Lawsuits

The Third Circuit has held in Farina v. Nokia that consumers may not sue cellphone companies over health hazards posed by cellphone radio wave emissions because this conflicts with the FCC's power to regulate the industry.

The decision is available here, and further coverage can be found at the National Law Journal.


October 25, 2010 in Federal Courts, Mass Torts | Permalink | Comments (0)

Thursday, October 21, 2010

Copeland on Judicial Federalism Through a Relational Lens

Prof. Charlton Copeland (Miami) has posted on SSRN his forthcoming article Federal Law in State Court: Judicial Federalism Through a Relational Lens, which will be published in the William & Mary Bill of Rights Journal. Here’s the abstract:

Enforcing federalism is most commonly thought to involve the search for a constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared, federalism enforcement proceeds from a determination about the appropriate site and substance of authority. This conception of federalism enforcement preserves the Constitution’s commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress has exceeded its authority in reenacting the Voting Rights Act’s preclearance requirements. Federalism enforcement as allocation also underwrites much federal courts doctrine. We ask whether Congress has the authority to commandeer state courts, or whether states have the right to close their doors to federal claims.

This article challenges allocation as the exclusive method of federalism enforcement. By focusing on the issue of state court duties to federal claims, this article asserts that federalism enforcement includes an alternative to allocation - relational federalism enforcement. Relational federalism enforcement is understood as the judicial mediation of the interaction of the national government and state governments that goes beyond merely invalidating particular practices as beyond the scope of power of a particular institutional actor. Relational federalism enforcement is grounded in the recognition that the Constitution establishes an enduring relationship between states and the national government. Following from this, relational federalism enforcement relies on behavioral norms, imposed on both states and the national government, which are consistent with the enduring nature of their interaction under the constitutional structure of federalism. In contrast to several leading scholars who seek to justify state court duties to federal claims by reference to constitutionally-demarcated sites of authority, this article argues that the duties imposed on state courts with respect to federal claims are better explained when we look through a relational lens. This framework has important implications for our understanding of other aspects of judicial federalism, including federal court abstention and Supreme Court appellate review of state court decisions.


(Hat Tip: Larry Solum)

October 21, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Monday, October 18, 2010

Eleventh Circuit Reverses Itself on CAFA: Cappuccitti v. DirecTV

This summer we covered (and critiqued) the Eleventh Circuit’s decision in Cappuccitti v. DirecTV, Inc., 611 F.3d 1252 (11th Cir. July 19, 2010), which had interpreted the jurisdictional provisions of the Class Action Fairness Act (CAFA). The July decision held that CAFA jurisdiction is available only if at least one class member’s claim exceeds the $75,000 threshold required for ordinary diversity jurisdiction under 28 U.S.C. § 1332(a). On Friday, the Eleventh Circuit panel reversed itself:

"Subsequent reflection has led us to conclude that our interpretation was incorrect. Specifically, CAFA’s text does not require at least one plaintiff in a class action to meet the amount in controversy requirement of 28 U.S.C. § 1332(a)."

The new decision is available here, on Westlaw at 2010 WL 4027719, and on Lexis at 2010 U.S. App. LEXIS 21348.


(Hat Tip: Scott Dodson)

October 18, 2010 in Class Actions, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

SCOTUS Cert Grant of Interest: Ashcroft v. Al-Kidd

The Supreme Court granted certiorari today in Ashcroft v. Al-Kidd (10-98), limited to questions 1 and 2:

(1) Whether a former government official is entitled to absolute immunity from a claim that he used the material witness statute as a “pretext” to preventatively detain terrorism suspects;

(2) Whether the former government official is entitled to qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of the respondent’s arrest.

The Ninth Circuit’s decision below was one of the first appellate opinions to apply the Supreme Court’s pleading decision in Ashcroft v. Iqbal, and it garnered considerable attention at the time for that reason (see, e.g., here and here). It’s not clear how much of a role pleading standards will play in the questions the Court will decide in Al-Kidd.

SCOTUSblog’s case file is available here, which contains links to the lower court opinion and the cert-stage briefs.


October 18, 2010 in Recent Decisions, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Knutsen on Deterence of Litigation in Canada

Erik S. Knutsen (Queens University Faculty of Law) has posted The Cost of Costs: The Unfortunate Deterence of Everyday Litigation in Canada to SSRN.

Costs today play a disproportionate role in many civil litigation decisions in Canada because of the inherent unpredictability built into the current overly complex costs system. Canada’s civil litigation system utilizes a fee shifting regime whereby an unsuccessful litigant must pay a proportion of the successful litigant’s legal fees. This costs system is designed to regulate litigation behaviour by deterring unmeritorious cases, by indemnifying successful litigants, by fostering efficient lawyer behaviour, by promoting settlement of disputes, and by ensuring access to the civil litigation system so that the cost of litigating is not out of reach for litigants. In today’s economy, however, the system is trying to do too much, and with too much at stake. The original system was put in place at a time when litigation costs were very often in reasonable proportion to the amount in dispute. Presently, the cost to litigate can quickly eclipse the value of what is at stake in the dispute. A summary judgment motion, for example, may cost upwards of the cost of a family vehicle for the average Canadian. In the minds of litigants and lawyers, unpredictable issues of legal costs often replace issues of substance at the heart of a litigated dispute. While the cost of civil litigation to an individual litigant has certainly increased over time, the increase is not due solely to the cost a litigant pays his or her own lawyer. An increase in the overall cost of litigation thus means an additional increase in costs the loser in a case must pay to the successful litigant, as well as to the loser’s own lawyer. If the loser is an average, middle-income earning Canadian litigating a standard contract or injury dispute, such a loss can be economically impossible to bear. Litigation costs through fee shifting have thus become a fundamental driving force in the Canadian civil litigation.

Courts in Canada exercise wide discretion in assessing costs through fee shifting and costs awards have become unpredictable as a result. This has led to an inability of litigants to ex ante predict their exposure to adverse cost awards. Risk averse litigants, especially those middle income Canadians with some financial exposure such as a house to lose, tend to shy away from the civil litigation system. This is how concern for costs can often eclipse the substantive rights being asserted in a particular case. Everyday litigants who are non-corporate individuals whose litigation costs are not covered by insurance cannot easily defray the financial burden of an adverse cost award. They are most likely to have cost concerns weigh heavily in the decision to advance a claim at all. However, should costs be driving litigation results? Should costs be driving access to the civil litigation system, particularly for the everyday litigants in Canada who have a house or modest savings to potentially lose?

Part I of this Article details how Canada’s fee shifting costs regime operates in a fashion to create a complex and unpredictable litigation dynamic. The Article explains the myriad of variables informing how legal costs are calculated in Canada and how lawyers, clients, and courts have difficulty in estimating financial exposure to such costs. In addition to the fee shifting system, the amount a litigant must pay her own lawyer plus Canada’s pre-trial settlement cost incentives also play large roles in how costs affect litigation decision-making in Canada. Part II of the Article attempts to define the everyday Canadian litigant who is most negatively affected by the current costs system because of an inability to internalize a negative costs award. The everyday litigant is in the most precarious position of potential litigants because costs drive a myriad of access to justice concerns for that group. Part III critically evaluates the costs landscape in Canada and concludes that costs, not the substantive legal claims of the litigants, are disproportionately driving the civil litigation system in Canada for everyday Canadian litigants. In short, costs have subsumed the substance of much Canadian litigation. This leads to not only over-deterrence of litigation in the name of settlement but to concerns about the ability of average Canadians to access the civil justice system for. Part IV evaluates possible fee regime models with an eye to informing modifications to Canada’s fee system. It recommends that Canada’s fee regime be reformed to allow for a hybrid, two-track approach. As a default, courts should adopt a one-sided pro-plaintiff fee shifting system as long as the defendant in litigation is able to somehow defray adverse cost awards through assets or insurance. If both plaintiff and defendant are litigants who cannot reasonably defray the cost of costs, a more American-style costs system of no fee shifting should govern. Settlement incentives should not be based on actual costs to litigate but instead should be a 10% uplift on final damages awarded at trial or settled. Part V concludes.


October 18, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Friday, October 15, 2010

NYTimes Editorial Highlights Need for Lawyers to Low Income Litigants in Civil Cases

An editorial in today's New York Times describes the inability of budget constrained legal representation programs for low income litigants to provide enough lawyers to persons in civil cases.  It calls on the New York State Legislature and Congress to develop and fund programs that will fill this need.


October 15, 2010 in In the News | Permalink | Comments (0)

Wednesday, October 13, 2010

SCOTUS Cert Grant of Interest: Bond v. United States

The Supreme Court granted certiorari yesterday in Bond v. United States (No. 09-1227). The question presented is: “Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.” According to the opinion below (from the Third Circuit):

[C]ourts of appeals are split on whether private parties have standing to challenge a federal act on the basis of the Tenth Amendment. Two circuit courts have allowed private parties to bring such challenges. See Gillespie v. City of Indianapolis, 185 F.3d 693, 703–04 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000); Atlanta Gas Light Co. v. U.S. Dep’t of Energy, 666 F.2d 1359, 1368 n. 16 (11th Cir. 1982). Five have not. See United States v. Hacker, 565 F.3d 522, 525–527 (8th Cir. 2009); Oregon v. Legal Servs. Corp., 552 F.3d 965, 971–72 (9th Cir. 2009); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 234–35 (2d Cir. 2006), cert. denied, 128 S.Ct. 44 (2007); Medeiros v. Vincent, 431 F.3d 25, 33–36 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006); United States v. Parker, 362 F.3d 1279, 1284–85 (10th Cir. 2004), cert. denied, 543 U.S. 874 (2004).

We are persuaded by the reasoning advanced by the majority of our sister courts and conclude that a private  party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.

The Third Circuit added:

Our conclusion does not bar individuals from any recourse in the face of Tenth Amendment violations accepted by a state. As the First Circuit Court explained, “the State represents the interests of its citizens in general, and, if it refuses to prosecute a viable Tenth Amendment claim, the citizens of that state may have recourse to local political processes to effect change in the state’s policy of acquiescence.”

SCOTUSblog’s case file is available here, which contains links to the Third Circuit’s opinion (reported at 582 F.3d 281) and the cert-stage briefs.


PS:  The cert. petition raises only the standing issue, but Bond’s constitutional challenge is also worth noting. The defendant was convicted under a criminal statute that implemented the 1993 Chemical Weapons Convention. As described in the Third Circuit’s opinion, the government argued that “the Tenth Amendment is no impediment to the operation of § 229 because Congress had authority to enact it under the Necessary and Proper Clause of the Constitution as a law enforcing its Treaty Power. Relying on Missouri v. Holland, 252 U.S. 416, 432 (1920), the Government asserts that § 229 need not be authorized by a specific power given to Congress, nor contain a requisite federal interest element.” The Third Circuit noted that the defendant’s challenge “ask[s] us to wade into the debate over the scope and persuasiveness of the decision in Holland.” Because of its standing decision, the Third Circuit did “not reach the merits of Bond’s arguments concerning the constitutionality of § 229 under our federal system of government.”

October 13, 2010 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, October 12, 2010

Third Annual Junior Faculty Federal Courts Workshop

Last week the University of Illinois College of Law hosted the Third Annual Junior Faculty Federal Courts Workshop in Chicago. Drafts of many of the papers presented are available on SSRN, including:

Scott Dodson, The Complexity of Jurisdictional Clarity

Joshua Douglas, The Procedure of Election Law in Federal Courts

Abbe Gluck, Intersystemic Statutory Interpretation: Methodology as "Law" and the Erie Doctrine

Jennifer Mason McAward, The Badges and Incidents of Slavery: A Conceptual Guide for Modern Thirteenth Amendment Legislation

Adam Steinman, Our Class Action Federalism: Erie and the Rules Enabling Act after Shady Grove

Other presenters included Sergio Campos, Lynda Dodd, Allan Erbsen, Tara Grove, Matthew Hall, Jennifer Hendricks, Rebecca Hollander-Blumhoff, Lumen Mulligan, Radha Pathak, John Preis, and Jamelle Sharpe. 

Thanks to Jamelle Sharpe for putting together an excellent event.


October 12, 2010 in Conferences/Symposia, Federal Courts, Recent Scholarship | Permalink | Comments (0)

Sunday, October 10, 2010

Two New Twombly/Iqbal Articles

Alex Reinert (Cardozo School of Law) has posted The Costs of Heightened Pleading to SSRN.

In Conley v. Gibson, 355 U. S. 41 (1957), the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases, and for decades thereafter was steadfast in resisting ad hoc heightened pleading rules adopted by lower courts. Thus, from 1957 until a few years ago, most litigants could count on surviving a motion to dismiss a complaint for failure to state a claim so long as their pleading provided some minimal notice to the defendant of the nature of their claim. Enter Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Iqbal and Twombly, on many accounts, two-stepped the Court from notice to heightened “plausibility” pleading for all civil cases. And it garnered applause and withering criticism. No one seems willing to defend the process that the Court used to abandon fifty years of pleading law — shorn as it was of any attention to the procedures contemplated by the Rules Enabling Act — but as a substantive matter, heightened pleading has many adherents. For heightened pleading advocates, it promises to reduce crowded dockets, make discovery available only to worthy litigants, and generally improve the quality of litigation to which attorneys and federal courts devote their attention. And at the bottom of it all lies a fundamental assumption — notice pleading lets in too many worthless cases and heightened pleading will keep them out. Despite this assumption, however, there has been almost no empirical analysis of the connection between merit and pleading.

This Article critically intervenes in this discussion by providing empirical data to question the widespread assumption about the benefits and costs of heightened pleading. The data reported here show that pleadings that would get by under a notice pleading standard but not a heightened pleading standard — what I refer to as “thin” pleadings — are just as likely to be successful as those cases that would survive heightened pleading. Indeed, the research summarized in this Article, gathered through a novel retrospective analysis of appellate and trial court decisions from 1990-1999, suggest that there is no correlation between the heft of a pleading and the ultimate success of a case.

This Article certainly does not end the debate, but it is better to begin on solid empirical footing than on supposition alone. Although there are limitations to the data reported here, they are more than we have had before, and they call attention to the costs of heightened pleading even as they suggest avenues for further research. As Congress, the judiciary, and the academy are engaged in a critical discussion as to how to respond to the Supreme Court’s most recent alteration of pleading jurisprudence, relevant empirical data should be part of the conversation.

 Hillel Y. Levin (University of Georgia School of Law) has posted Iqbal, Twombly and the Lessons of the Celotex Trilogy to SSRN.

This Essay compares the Twombly/Iqbal line of cases to the Celotex trilogy and suggests that developments since the latter offer lessons for the former. Some of the comparisons are obvious: decreased access and increased judicial discretion. However, one important similarity has not been well understood: that the driving force in both contexts has been the lower courts rather than the Supreme Court. Further, while we can expect additional access barriers to be erected in the future, our focus should be on lower courts, rather than other institutional players, as the likely source of those barriers.


October 10, 2010 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Tuesday, October 5, 2010

"Petition to Decision": A Digital Archive of Supreme Court Civil Rights Cases

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:

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 [email protected].


October 5, 2010 in Federal Courts, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Monday, October 4, 2010

Miller on Pleading: From Conley to Twombly to Iqbal

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).

October 4, 2010 in Federal Rules of Civil Procedure, Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Toyota's Twombly/Iqbal Strategy

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.


October 4, 2010 in Federal Rules of Civil Procedure, In the News, Mass Torts, MDLs | Permalink | Comments (0)

Saturday, October 2, 2010

SEALS Call for Papers on American Civil Procedure in the 21st Century

Here is a call for papers for the 2011 Southeastern Association of Law Schools 2011 Annual Meeting, which will be held in Hilton Head, South Carolina between July 24 and July 30, 2011.  The discussion group topic for this call to papers is "Evolution or Revolution? American Civil Procedure in the 21st Century."

The past decade has seen a number of significant changes in the American approach to litigation. Concerns with expense and fairness have lead to important new initiatives to contract federal jurisdiction, limit pleadings, control discovery, redefine the class action device, and promote the use of litigation alternatives. This Discussion Group will examine the important trends in Civil Procedure and their causes and discuss what actions should be taken to respond to them.

This Discussion Group has been organized by Professors Tom Metzloff of Duke and Mike Allen of Stetson. Current discussants include Professors Rich Freer of Emory, Howard Wasserman of FIU, Scott Dodson of William & Mary and Lonny Hoffman of Houston. We are seeking additional discussants for this group. Discussants will prepare a short paper to be exchanged before the conference. There is a possibility that the papers will be published in a law review.

Anyone interested in being considered for one of the remaining discussant slots should send a two-page description of the general nature of his or her topic/paper to Mike Allen at [email protected] by January 15, 2011. You will be notified about your acceptance as a discussant no later than February 15, 2011. You may direct any questions to either Mike Allen or Tom Metzloff.



October 2, 2010 in Conferences/Symposia | Permalink | Comments (0) | TrackBack (0)