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Law, Facts, And Power, Elizabeth G. Thornburg
Law, Facts, And Power, Elizabeth G. Thornburg
Faculty Journal Articles and Book Chapters
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 …
Litigating The Zero-Sum Game: The Effect Of Institutional Reform Litigation On Absent Parties, Elizabeth G. Thornburg
Litigating The Zero-Sum Game: The Effect Of Institutional Reform Litigation On Absent Parties, Elizabeth G. Thornburg
Faculty Journal Articles and Book Chapters
This article considers the impact that the use and misuse of equitable interest balancing has had on institutional reform litigation. It begins by considering the types of cases in which interest balancing was originally used in equity, and then surveys the use of interest balancing in school desegregation and employment discrimination cases. The article argues that the Supreme Court's interest balancing is flawed in systemic ways that result in overvaluing non-party interests.