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Full-Text Articles in Jurisprudence
An Essay On Torts: States Of Argument, Marshall S. Shapo
An Essay On Torts: States Of Argument, Marshall S. Shapo
Faculty Working Papers
This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …
The Rise Of The Common Law Of Federal Pleading: Iqbal, Twombly And The Application Of Judicial Experience, Henry S. Noyes
The Rise Of The Common Law Of Federal Pleading: Iqbal, Twombly And The Application Of Judicial Experience, Henry S. Noyes
Henry S. Noyes
With its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief...will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand …