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Making Sense Of Twombly, Edward D. Cavanagh
Making Sense Of Twombly, Edward D. Cavanagh
Edward D. Cavanagh
Abstract
In May 2007, the Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Twombly has triggered an avalanche of motions to dismiss, which, in turn, have generated thousands of judicial opinions, some of them knee-jerk reactions, other more thoughtful. It also has generated a plethora of academic commentary, much of it shrill and negative.
As the fourth anniversary of the Twombly decision approaches, the time for venting is over. Twombly is the law of the land; and the Supreme Court, having affirmed that decision in Iqbal, is not likely to shift …
Rulemaking, Litigation Culture And Reform In Federal Courts, Edward D. Cavanagh
Rulemaking, Litigation Culture And Reform In Federal Courts, Edward D. Cavanagh
Edward D. Cavanagh
Abstract This article examines the role of litigation culture in establishing standards for the conduct of litigation in the federal courts. It argues that culturally based practices are firmly embedded in the federal civil justice system. The practice culture in a particular district may be the source of local rules or may serve as a gap-filler to provide standards where written rules do not exist or are not cost-effective to draft. Rules at odds with cultural practices face resistance from the bench and bar. Culturally rooted practices are not easily dislodged, and a mere amendment to the Federal Rules is …
Making Sense Of Twombly, Edward D. Cavanagh
Making Sense Of Twombly, Edward D. Cavanagh
Edward D. Cavanagh
In May 2007, the Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Twombly has triggered an avalanche of motions to dismiss, which, in turn, have generated thousands of judicial opinions, some of them knee-jerk reactions, other more thoughtful. It also has generated a plethora of academic commentary, much of it shrill and negative. As the fourth anniversary of the Twombly decision approaches, the time for venting is over. Twombly is the law of the land; and the Supreme Court, having affirmed that decision in Iqbal, is not likely to shift course. …
Rulemaking, Litigation Culture And Reform In Federal Courts, Edward D. Cavanagh
Rulemaking, Litigation Culture And Reform In Federal Courts, Edward D. Cavanagh
Edward D. Cavanagh
This article examines the role of litigation culture in establishing standards for the conduct of litigation in the federal courts. It argues that culturally based practices are firmly embedded in the federal civil justice system. The practice culture in a particular district may be the source of local rules or may serve as a gap-filler to provide standards where written rules do not exist or are not cost-effective to draft. Rules at odds with cultural practices face resistance from the bench and bar. Culturally rooted practices are not easily dislodged, and a mere amendment to the Federal Rules is unlikely …
Issue Preclusion In Complex Litigation, Edward D. Cavanagh
Issue Preclusion In Complex Litigation, Edward D. Cavanagh
Edward D. Cavanagh
Issue Preclusion In Complex Litigation Introduction In an era of multiparty, multijurisdictional, multidistrict litigation, federal cases have grown increasingly complex. As judges struggle to manage complicated cases, a new litigation paradigm has emerged. Rather than attempting to try all cases in one action, federal judges are now breaking the litigation down into smaller pieces, using "fast tracks" or "bellwether” cases, hoping that resolution of one or two cases will lead to settlement of the rest. Inevitably, because the cases involve identical fact issues and identical defendants, the doctrine of prior adjudication comes into play. This article identifies and analyzes significant …