Law Commons^™

Contracting Around Twombly, Alon Klement, Daphna Kapeliuk

Alon Klement

The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have generated a heated debate over which is the most just and efficient transsubstantive pleading standard. Unlike the vast scholarship that followed these decisions, we do not take sides in this debate. Instead, we focus on a subset of cases in which litigants have prior contractual relationships. We argue that if contracting parties are allowed to contract around the Twombly pleading standard, they will be able to overcome problems of inadequate screening and to realize both pre-dispute and post-dispute opportunities that would prove unfeasible otherwise. …

Special Incentives To Sue, Margaret H. Lemos

Margaret H. Lemos

In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when those incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. …

But What If The Court Reporter Is Lying? The Right To Confront Hidden Declarants Found In Transcripts Of Former Testimony, Peter Nicolas

Peter Nicolas

In Crawford v. Washington, the U.S. Supreme Court re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are “testimonial” in nature are generally inadmissible when offered against the accused in a criminal case. Yet in Crawford, the Supreme Court held that former testimony is admissible against the accused (despite the fact that it is “testimonial”) if the person who gave the former testimony is unavailable to testify and the accused had a prior opportunity to cross-examine the person.

This manuscript addresses the hidden hearsay and Confrontation Clause problems that arise when an effort is made …

Iqbal, Twombly, And The Expected Cost Of False Positive Error, Max Huffman

Max Huffman

Iqbal and Twombly introduced a new standard for pleading federal claims, overruling the five-decades old language from Conley v. Gibson. Instead of plaintiffs being entitled to discovery unless the complaint affirmatively forecloses the possibility of recovery, Iqbal and Twombly require a more searching evaluation of the complaint under an ambiguous “plausibility” standard. The policy behind this increased burden on plaintiffs is to prevent the false positive error that burdensome discovery creates. How the plausibility standard from Iqbal and Twombly should operate in the real world is poorly understood. There is general acknowledgement that no clear guidance exists about how to …

Patent Pleading After Iqbal: Using Infringement Contentions As A Guide, Richard Alan Kamprath

Richard Kamprath

“Patent Pleading After Iqbal: Using Infringement Contentions As A Guide” This article proposes how the new standard for pleading patent infringement related claims should be interpreted in light of the Supreme Court’s decisions in Twombly and Iqbal. The facial plausibility of a pleading requires more than bare allegations and must be supported with enough facts in order for the court to infer wrongdoing by the accused infringer. This article is dedicated to applying this theory of pleading to the practical world of the courtroom. Federal Rule 8 is discussed as the starting point to understanding pleading in the federal courts. …

Malthus The Federal Judge: A Comprehensive Economic Defense Of Selective Publication Of Judicial Opinions, Shlomo Maza

Shlomo Maza

My article seeks to examine the system of limited publication using the tools of economic analysis. Non-publication and its accompanying non-citation rules are in force in all of our courts, yet subject to widespread academic criticism. By using the tools of economic analysis, particularly the Rule of Diminishing Marginal Returns as put forth by both Classical and more modern economists, I seek to provide an economic model that provides theoretical support for non-publication. This model demonstrates that because of the inherent nature of legal precedent and its role in our legal system non-publication is not merely the lesser of two …

Texas Civil Procedure—The Texas Supreme Court Expands Mandamus Review For Rulings On Motions For New Trial, Timothy D. Martin

Timothy D Martin

No abstract provided.

Cooperative Interbranch Federalism: Certification Of State-Law Questions By Federal Agencies, Verity Winship

Verity Winship

When an unresolved state-law question arises in federal court, the court may certify it to the relevant state court. The practice of certification from one court to another has been widely adopted and has been touted as “help[ing] build a cooperative judicial federalism.” This article proposes that states promote cooperative interbranch federalism by allowing federal agencies to certify unresolved state-law questions to state courts. It draws on Delaware’s recent expansion of potential certifying entities to the Securities and Exchange Commission to argue that this innovation should be extended to other states and other federal agencies. Certification from federal agencies to …

Embedded Librarians: Teaching Legal Research As A Lawyering Skill, Vicenç Feliú, Helen Frazer

Vicenç Feliú

This article addresses a proposed pedagogy for teaching the lawyering skill of advanced legal research in practice environment, such as a clinic, consonant with the recommendations of the 2007 Carnegie Report, Educating Lawyers, and the 1992 ABA Taskforce on Law Schools and the Profession, Legal Education and Professional Development (the MacCrate Report). It examines how the relatively new trend of embedding librarians in practice settings, offering assistance at the point of need, could be effective in law schools. It proposes a model for teaching advanced legal research by embedding law librarians in law school clinics based on the experiment conducted …

The New Second Circuit Local Rules: Anatomy And Commentary, Jodi S. Balsam

Jodi S Balsam

The New Second Circuit Local Rules provides a general account of the origins, accretion, and renewal of local rules in the federal appellate courts, and specific commentary on the wholesale revision of the Second Circuit’s local rules, adopted earlier this year. The Second Circuit local rules had not been holistically reappraised in over 100 years when, in 2008, the Court engaged me to spearhead a comprehensive review and rewrite. Among other things, the project undertook to comply with appellate local rulemaking strictures imposed by 1995 amendments to the Federal Rules of Appellate Procedure and by Judicial Conference mandates that originated …

Necessary Third Parties: Multidisciplinary Collaboration And Inadequate Professional Privileges In Domestic Violence Practice, Jeffrey R. Baker

Jeffrey R Baker

The rise of multidisciplinary practices among public-interest lawyers and other professionals promotes more effective and thorough services for vulnerable clients. In various forms, these professionals are creating formal or ad hoc partnerships as they minster to whole clients, not just to a client’s peculiar, momentary problem. For a victim of domestic violence, these collaborations can yield better outcomes and fruitful service, but they may also be critical to her very survival. As the common client works to escape a violent, oppressive relationship, her diverse professional servants must address the acute conflation of legal, medical, psychological, emotional and financial crises that …

Transnational Litigation And Institutional Choice, Cassandra Burke Robertson

Cassandra Burke Robertson

When U.S. corporations cause harm abroad, should foreign plaintiffs be allowed to sue in the United States? Federal courts are increasingly saying no. The courts have expanded the doctrines of forum non conveniens and prudential standing to dismiss a growing number of transnational cases. This restriction of court access has sparked considerable tension in international relations, as a number of other nations view such dismissals as an attempt to insulate U.S. corporations from liability. A growing number of countries have responded by enacting retaliatory legislation that may ultimately harm U.S. interests. This article argues that the judiciary’s restriction of access …

Law, Facts, And Power, Elizabeth Thornburg

Beth Thornburg

The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself—both in the already notorious pleading section of the opinion, and in the much-less-noted …

The Managerial Judge Goes To Trial, Elizabeth Thornburg

Beth Thornburg

Scholars have examined the phenomenon of pre-trial judicial management, but have ignored the ways in which this problematic set of attitudes has invaded the trial phase of litigation. This article examines the use of managerial discretion at the trial stage and demonstrates that trial-phase managerial decisions suffer from all the problems of their pre-trial counterparts: 1) trial management involves judges so intimately in the parties’ information and strategies that it may compromise the judges’ impartiality; 2) it leads to a loss of transparency as more decisions are made off the record or in chambers; 3) management decisions are not guided …

Color-Blind: Procedure's Quiet But Crucial Role In Achieving Racial Justice, Benjamin V. Madison Iii

Benjamin V Madison, III

This article explores the role of procedural institutions, both in the Constitution and in other laws related to the judicial system, that promote impartial justice. The article explores the twin principles of human fallibility and the equality of all human beings as the fundamental bases of the judicial system. The role of procedure in enabling federal courts to enforce the Supreme Court's decision in Brown v. Board of Education is a featured part of the article.

No Sirve: The Invalidity Of Service Of Process Abroad By Mail Or Private Process Server, Charles B. Campbell

Charles B. Campbell

Service of process abroad by mail or private process server on parties in Mexico is invalid under the Hague Service Convention. The other alternative methods of service abroad listed in Article 10 of the Convention are invalid, as well. As one might say in Spanish, such alternative service no sirve—i.e., is useless—in Mexico. Accordingly, service of process abroad by United States litigants and courts on parties in Mexico should proceed through Mexico’s Central Authority in accordance with Articles 3 through 7 of the Convention.

Classification Of Participants In Suicide Attacks And The Implications Of This Classification For The Severity Of The Sentence: The Israeli Experience In The Military Courts In Judea And Samaria, Chagai D. Vinizky, Amit Preiss

Chagai D Vinizky

*** A revised version of this article is forthcoming in 30 Pace Law Review (Winter2010) *** The twenty-first century witnessed a considerable rise in the number of suicide attacks. The largest suicide attacks were carried out by Al-Qaeda in the United States on 11.9.2001 when that organization crashed four passenger planes (two into the Twin Towers and one into the Pentagon building) killing 2,973 civilians. Between the 11th September and the present time, suicide attacks have taken place throughout the world, including in Turkey, Great Britain, Egypt, India, Jordan, Spain and Iraq leading to thousands of deaths. A large proportion …

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

David R. Cleveland

While unpublished opinions are now freely citeable under Federal Rule of Appellate Procedure 32.1, their precedential value remains uncertain. This ambiguity muddles the already unclear law surrounding qualified immunity and denies courts valuable precedents for making fair and consistent judgments on these critical civil rights issues. When faced with a claim that they have violated a person’s civil rights, government officials typically claim qualified immunity. The test is whether they have violated “clearly established law.” Unfortunately, the federal circuits differ on whether unpublished opinions may be used in determining clearly established law. This article, Clear as Mud: How the Uncertain …

Protect The Children: Challenges That Result In, And Consequences Resulting From, Inconsistent Prosecution Of Child Pornography Cases In A Technological World, Francis S. Monterosso

Francis S Monterosso

This Note untangles courts’ problems with the prosecution of child pornography defendants and aims to redirect attention to the social impact associated with these crimes. First, Part I provides an introduction to the Note and discusses the background of the Child Pornography Prevention Act. Secondly, Part II sets forth the evolution of the CPPA and its goals and shortcomings. Next, Part III further explains the development of child pornography prosecutions in the United States through two cases that illustrate the government’s desire to prosecute child pornography defendants.

Moreover, Part IV explains the difficulties courts have encountered in the prosecution of …

The Head-On Collision Of Gasperini And The Derailment Of Erie: Exposing The Futility Of The Accommodation Doctrine, Armando Gustavo Hernandez

Armando G. Hernandez

A simple truism we all learned in our childhood was that the square pegs did not fit into the circular shaped cut-outs. Greek philosophers often struggled with this very same conundrum of squaring the circle. In 1996, the Supreme Court decided Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The case required application of the Court's Erie jurisprudence. Many commentators hailed the case as the ideal moment to clarify the Court's esoteric body of law. However, writing for a six vote majority, Justice Ginsburg held that state law (the square) and federal law (the circle) could be accommodated. …

Evidence In International Criminal Trials: Lessons And Contributions From The Special Court For Sierra Leone, Patrick Matthew Hassan-Morlai

Patrick Matthew Hassan-Morlai

The general aim of this paper is to contribute to the discourse on the development of a system of international criminal justice. In so doing, this paper will pay attention to one aspect – rules of evidence – and examine its role in ensuring the rights to fair trial. The examination is limited to discussing offences relating to the jurisdiction ratione materiae of the SCSL contained in Articles 2-5 of the SCSL Statute.

Social Networking Sites: A Reasonably Calculable Method To Effect Service Of Process, Melodie M. Dan

Melodie M. Dan

SOCIAL NETWORKING SITES: A REASONABLY CALCULABLE METHOD TO AFFECT SERVICE OF PROCESS

The evolution of technology has presented a new method of affecting service of process. Society uses social networking sites to stay in touch with family and friends and to meet new friends. We live in a society where social networking sites are a part of our everyday lives. Such sites allow users to send each other messages publicly or privately, either to their private inboxes or by posting a comment to a user’s profile. In light of this new possible method of service, Courts must determine whether service …

An Overview Of Tolls To Statutes Of Limitations On Account Of War: Are They Current And Relevant In The Post-September 11th Era?, Hon. Mark Dillon

Hon. Mark C. Dillon

The devastation of the attacks that occurred at the World Trade Center on September 11, 2001 included costly disruption to the operation of courts in the City and State of New York. A court facility at Five World Trade Center was destroyed. Attorneys were among the 2,752 persons killed in the event. Law offices were destroyed. Key litigation witnesses and documents were lost forever. Thousands of attorneys were unable to access their work for days. State courts in Manhattan did not reopen for business until September 17, 2001. Amidst the turmoil and confusion, there was a defined set of potential …

A Tale Of Election Day 2008: Teaching Storytelling Through Repeated Experiences, Serge A. Martinez, Stefan H. Krieger

Stefan H Krieger

The article was inspired by a one-day project November 4, 2008, when we supervised a number of clinic students representing voters who had been denied the right to vote. As they represented client after client, we noticed significant improvement in their storytelling skills over a very short period, despite having little training in storytelling theory or techniques. Using our Election Day project as a starting point, the article questions the dominant pedagogical model for teaching storytelling, which focuses primarily on teaching storytelling and narrative theory. We propose a new method, based on cognitive science findings about experiential learning, that emphasizes …

Rules And Tools Of Nonprofit Lobbying, Sharon Wilson

Sharon Wilson

Abstract: This article focuses primarily on the federal tax law restrictions on lobbying and political campaign activities of 501( c)(3) organizations. A brief history of the restrictions on lobbying is followed by an instructional guide for nonprofit organizations and attorneys seeking to advise nonprofits about permissible conduct in this arena. Opportunities for greater political involvement through use of sec 501(h), sec 501©(4) and other strategies that have been deemed permissible by the Internal Revenue Service are explored. An examination of the IRS’s questionable annual examination process for nonprofits is explored.

Refashioning Legal Pedagogy After The Carnegie Report: Something Borrowed, Something New, Debra M. Schneider

Debra M Schneider

The Carnegie Foundation published in 2007 its ground-breaking book titled Educating Lawyers: Preparation for the Profession of Law, in which it pointed out significant pedagogical imbalance in legal education. In particular, the Carnegie report said that law schools should infuse their curricula with more practical and ethical training. How a law school ought to accomplish the Carnegie aim is another challenge, one that this paper squarely addresses.

Traditional legal education is sorely imbalanced. A law student receives rigorous training in legal doctrine and analytical skills—he learns to “think like a lawyer”—but is left with little training in practical skills or …

“T’Was Three Years After Twombly And All Through The Bar, Not A Plaintiff Was Troubled From Near Or From Far.” The Unremarkable Effect Of The U.S. Supreme Court’S Re-Expressed Pleading Standard In Bell Atlantic Corp. V. Twombly, Daniel R. Karon

Daniel R Karon

No U.S. Supreme Court case in recent memory has caused more confusion and suffering than Bell Atlantic Corp. v. Twombly. Post-Twombly commentary falls largely into two camps: Twombly is wrong because it raised Rule 8’s pleading standard or Twombly is right because it did. But scant, if any, discussion exists suggesting that Twombly is right because it didn’t alter this standard. My Article argues that the Court properly honored longstanding Court precedent when deciding Twombly and merely reaffirmed Rule 8’s pleading requirements. After chronicling the Federal Rules’ creation—with an emphasis on Rule 8—my Article dissects the trilogy of U.S. Supreme …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

Structure And Precedent, Jeffrey C. Dobbins

Jeffrey C. Dobbins

The standard model of vertical precedent is part of the deep structure of our legal system. The rules governing that model are largely intuitive, often taught only in passing at law school, and rarely addressed by positive law. While the application of these rules of precedent can be difficult in practice, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. A Ninth Circuit opinion, for instance, is binding on district courts within the Ninth Circuit and on subsequent Ninth Circuit panels; it is not binding on Second Circuit panels. …

Os “Quora” Nos Tribunais Superiores E A Legitimidade De Seus Precedentes: A Decisão Sobre O Recurso Prematuro No Superior Tribunal De Justiça., Nelson Rodrigues Netto

Nelson Rodrigues Netto

No abstract provided.