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Parity As Comparative Capacity: A New Empirics Of The Parity Debate, Meredith R. Aska Mcbride
Parity As Comparative Capacity: A New Empirics Of The Parity Debate, Meredith R. Aska Mcbride
University of Cincinnati Law Review
In 1977, Burt Neuborne published an article in the Harvard Law Review proclaiming that parity was a “myth”—that state courts could not be trusted to enforce federal constitutional rights. For the next 15 years, the question of parity (the equivalence of state and federal courts in adjudicating federal causes of action) was at the forefront of federal courts scholarship. But in the early 1990s, the parity debate ground to a halt after important commentators proclaimed it an empirical question that, paradoxically, could not be answered by any existing empirical methods. This article argues that proposition was unfounded at the time …
Politics, Identity, And Pleading Decisions On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang
Politics, Identity, And Pleading Decisions On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. We first describe the role that pleading was intended to play in the original (1938) Federal Rules of Civil Procedure, review the Court’s decisions in Twombly and Iqbal, and offer a brief discussion of common themes in normative scholarship that is critical of Twombly and Iqbal, including the claim that they threaten to amplify ideological and subjective decision-making, particularly …