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Iqbal And Interpretation, Karen Petroski
Iqbal And Interpretation, Karen Petroski
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Assessing a year’s worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, this Article provides a novel explanation for the decision and presents it as radical indeed, but in a way previously unremarked by commentators. The sharp divisions in the responses to Iqbal have masked a deeper consensus and have blocked wide awareness of the decision’s constructive potential for diverse interest groups. This consensus is based on a simplified account of the ideal function of pleading in our system of civil litigation, one that first took hold in the early twentieth century. What unsettles many observers …
Reverse Abstention, Samuel P. Jordan
Reverse Abstention, Samuel P. Jordan
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State courts decide claims based on federal or sister-state law every day. Although the applicable constitutional provisions are different, there are significant similarities in the way the Supreme Court conceptualizes the constraints on how those claims must be treated. One project of this Article is to chart those similarities, providing a unified account of the Court’s approach to judicial federalism. The larger project, however, is not to describe the Court’s approach, but to replace it. The current emphasis on discrimination and interference imposes burdensome and unwarranted obligations on state courts. A more flexible approach to judicial federalism is needed, and …