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Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach
Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach
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In light of the gateway role that the pleading standard can play in our civil litigation system, measuring the empirical effects of pleading policy changes embodied in the Supreme Court's controversial Twombly and Iqbal cases is important. In my earlier paper, Locking the Doors to Discovery, I argued that in doing so, special care is required in formulating the object of empirical study. Taking party behavior seriously, as Locking the Doors does, leads to empirical results suggesting that Twombly and Iqbal have had substantial effects among cases that face Rule 12(b)(6) motions post-Iqbal. This paper responds to …
Judicial Independence, Judicial Accountability And Interbranch Relations, Stephen B. Burbank
Judicial Independence, Judicial Accountability And Interbranch Relations, Stephen B. Burbank
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In this paper I argue that the main cause of the poisonous state of interbranch relations involving the federal judiciary, as of the frequent and strident attacks on courts, federal and state, are strategies calculated to persuade the public that courts are part of ordinary politics and thus that judges are policy agents to be held accountable as such. Although unremarkable in the sense that a breakdown in norms of interdependency is a defining characteristic of contemporary politics, I regard the current situation involving the federal judiciary as remarkably dangerous because of the possibility that a tipping point of no …