Law Commons^™

9(B) Or Not 9(B)? That Is The Question: How To Plead Negligent Misrepresentation In The Post-Twombly Era, Andrew Todres

Fordham Law Review

Perhaps nothing is more important to a litigant bringing an action in federal court than knowing the relevant pleading standard for his or her underlying claims. Ever since the inception of the Federal Rules of Civil Procedure, one of two pleading standards have applied to common law claims: the Rule 8(a)(2) standard, requiring a short and plain statement demonstrating entitlement to relief, or the Rule 9(b) standard, demanding that allegations of fraud or mistake be pled with particularity. At the intersection of these two pleading standards is the common law claim of negligent misrepresentation. Courts across the country have long …

To Say What The Law Is: Rules, Results, And The Dangers Of Inferential Stare Decisis, Adam N. Steinman

Faculty Scholarship

Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions—Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal—turn this conventional …

Election Law Pleading, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article explores how the Supreme Court’s recent pleading decisions in Twombly and Iqbal have impacted election litigation. It explains how Twombly and Iqbal’s “factual plausibility” standard usually does not help in an election case, because there is often little factual dispute regarding the operation of the election practice. Instead, the real question in a motion to dismiss is whether the plaintiff has stated a viable cause of action against the government defendant who is administering the election. But Twombly and Iqbal’s rule does not assist in answering this question. That is, Twombly and Iqbal are incongruent with …

Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew J.B. Lawrence

Faculty Scholarly Works

Policymakers from Senator Edward Kennedy to Civil Rules Advisory Committee Reporter Edward Cooper have proposed that class actions be subject to a more stringent pleading threshold than individually-filed suits, yet the question has not been fully explored in legal scholarship. This Article addresses that gap. It shows that courts following the guidance of Bell Atlantic v. Twombly should apply a relatively more stringent pleading threshold to class actions, and a relatively less stringent threshold to individually-filed suits.

This contribution is set forth in two steps. First, this Article explains that, all else being equal, the anticipated systems’ costs and benefits …

Putting The Trial Penalty On Trial, David S. Abrams

All Faculty Scholarship

The "trial penalty" is a concept widely accepted by all the major actors in the criminal justice system: defendants, prosecutors, defense attorneys, court employees, and judges. The notion is that defendants receive longer sentences at trial than they would have through plea bargain, often substantially longer. The concept is intuitive: longer sentences are necessary in order to induce settlements and without a high settlement rate it would be impossible for courts as currently structured to sustain their immense caseload. While intuitively appealing, this view of the trial penalty is completely at odds with economic prediction. Since both prosecutors and defendants …

The Odd State Of Twiqbal Plausibility In Pleading Affirmative Defenses , William M. Janssen

Washington and Lee Law Review

No abstract provided.

Twombly Is The Logical Extension Of The Mathews V. Eldridge Test To Discovery, Andrew Blair-Stanek

Andrew Blair-Stanek

The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both practitioners and scholars, casting aside the well-settled rule for evaluating motions to dismiss in favor of an amorphous “plausibility” standard. This Article argues that Twombly was not revolutionary but simply part of the Court’s ever-expanding application of the familiar three-factor Mathews v. Eldridge test. Misused discovery can deprive litigants of property and liberty interests, and in some cases Mathews requires the safeguard of dismissing the complaint. This Article’s insight explains Twombly’s origins and structure, while also suggesting a source for lower courts to draw …

Elementary Pleading, Charles B. Campbell

Louisiana Law Review

No abstract provided.

Elementary Pleading, Charles B. Campbell

Charles B. Campbell

This article is a sequel to A “Plausible” Showing After Bell Atlantic Corp. v. Twombly, which suggested that Twombly required “direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” This standard—referred to here as elementary pleading—has been cited thousands of times since Twombly. After Ashcroft v. Iqbal, the elementary pleading standard fits within a three-part framework that requires the court and litigants to identify the elements of the plaintiff’s claim, to identify and disregard conclusory allegations, and, finally, to assess the well-pleaded allegations to determine whether they constitute a “plausible claim …

Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking, Daniel R. Coquillette

University of Michigan Journal of Law Reform

The parallels between Bacon's career and that of Edward H. Cooper are, of course, obvious. Bacon was one of the great legal minds of his day. Unlike the common-law judges who formed the law by deciding cases, Bacon expressed his greatness in writing brilliant juristic treatises and, as Lord Chancellor, drafting one of the first modern rule systems, the Ordinances in Chancery (1617-1620). Indeed, my thesis is that Bacon invented modern, scientific rulemaking by fusing his new theories of inductive, empirical research with the traditions of equitable pleading and is, in fact, the intellectual forbearer of the likes of Charles …

Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew Lawrence

Matthew B. Lawrence