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:

Recent Decisions, Supreme Court Cases, Twombly/Iqbal, Weblogs | Permalink


Déjà vu all over again! Must parties plead the law?

Common law pleading required that the parties plead the legal basis for relief. Code pleading tried to get away from that, but fell back into the same old same old. The Federal Rules likewise tried to get away from pleading law. Clarke sought to move in the direction of the Civil Law. We are not there!

It’s all about the judge’s role. Does the judge know the law? That’s not the Common Law way. Does the judge guide the parties in formulating the issues? Give me the facts, and I will give you your right. That’s the Civil Law way. Da mihi factum, dabo tibi ius is the Latin maxim that prevails in more than just the system I know well.

When will we be more civil and less common?

Allow me to refer to an article and a book both in point:

Maxeiner, James R., Pleading and Access to Civil Procedure: Historical and Comparative Reflections on Iqbal, a Day in Court and a Decision According to Law (March 26, 2010). Penn State Law Review, Vol. 114, p. 1257, 2010; University of Baltimore School of Law Legal Studies Research Paper. Available at SSRN:

and a book

Failures of American Civil Justice in International Perspective by Maxeiner/Lee/Weber (Cambridge University Press 2011)

Posted by: James Maxeiner | Nov 16, 2014 7:47:37 AM

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