Monday, August 31, 2009

Prof. Steinman Posts Article Entitled "The Pleading Problem"

Professor Adam Steinman recently posted an Article entitled The Pleading Problem on SSRN. Here is the Abstract:

Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This article provides that theory. It develops a new paradigm - plain pleading - as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference. Moreover, it is able to reconcile Twombly and Iqbal with pre-Twombly authority.

This Article may be downloaded by visiting

Tuesday, August 25, 2009

AALS Workshop on Civil Procedure


TO: Civil Procedure Law Professors

FROM: Planning Committee on 2010 Workshop on Civil Procedure:
Charting Your Course in a Shifting Field

Frederic M. Bloom, Brooklyn Law School
Laura Hines, University of Kansas
Richard A. Nagareda, Vanderbilt University
Patrick Woolley, University of Texas at Austin, Chair
Stephen C. Yeazell, University Of California at Los Angeles

Request for Proposals

We are seeking proposals for presentations on the three following topics:
1. The Hardest Case-and How to Teach It
2. Emerging Teaching Methods: A Different Way to Teach This Subject
3. Big Topics in Shrinking Units: How to Trim Your Syllabus

We are planning the AALS 2010 Mid-Year Meeting Workshop on Civil Procedure: Charting Your Course in a Shifting Field, June 10-11, 2010 at the Sheraton New York in New York City. The workshop will address many of the substantive developments transforming our field. We know, though, that many are already overcoming the special challenges of our course, as the number of hours dedicated to it at many schools declines and its complexity increases. We are therefore asking for those who have met these challenges to tell others how they have done it. Share your ideas with us!

For any of the three topics, please send us a two-page précis of your presentation. For the emerging pedagogies panel we're interested both in new modes of presentation and testing (including digital ones), as well as in special thematic foci-including courses with special emphasis on professional values. For the third topic please also attach a syllabus indicating classroom hours by topic. Interested faculty should submit proposals by September 1, 2009 to Selected speakers will hear from us by September 30, 2009.

The selected speakers pay the registration fee for the Workshop and are responsible for their own travel and other expenses. Please direct questions to Professor Patrick Woolley, University of Texas at Austin, or Professor Stephen C. Yeazell, University of California at Los Angeles,

Tuesday, August 18, 2009

Eleventh Circuit Dismisses Conspiracy Allegations as Insufficient under Iqbal

Per Sinaltrainal v. Coca-Cola Co., --- F.3d ----, 2009 WL 2431463 (11th Cir. Aug. 11, 2009):

We reiterate that to state a plausible claim for relief, the plaintiffs must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. Rule 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1964. At the same time, however, the complaint must plead “more than an unadorned, the-defendant-unlawfully-harmed-me.” Iqbal, 129 S.Ct. at 1949. Furthermore, unwarranted deductions of fact in a complaint are not admitted as true for the purpose of testing the sufficiency of the allegations. Aldana, 416 F.3d at 1248, and the facts as pled must state a claim for relief that is plausible on its face, see Iqbal, 129 S.Ct. at 1950.
Here, the Garcia plaintiffs' attenuated chain of conspiracy fails to nudge their claims across the line from conceivable to plausible. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974. First, while the plaintiffs allege “Aponte's plan necessarily required the cooperation and complicity of the arresting police officers,” we are not required to admit as true this unwarranted deduction of fact. Second, the plaintiffs' allegations of conspiracy are “based on information and belief,” and fail to provide any factual content that allows us “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. Specifically, these plaintiffs allege “[t]he basis for the conspiracy was either that Aponte arranged to provide payment to the officers for their participation, or that the officers had a shared purpose with Aponte to unlawfully arrest and detain Plaintiffs because they were union officials and had been branded by Panamco officials as leftist guerillas.” The premise for the conspiracy is alleged to be either payment of money or a shared ideology. The vague and conclusory nature of these allegations is insufficient to state a claim for relief, and “will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.
Furthermore, the complaint fails to allege when or with whom Aponte entered into a conspiracy to arrest, detain, and harm the plaintiffs. The scope of the conspiracy and its participants are undefined. There are no allegations the treatment the plaintiffs received at the hands of the local police and in prison was within the scope of the conspiracy. Additionally, assuming Aponte even conspired with the local police to arrest the plaintiffs, this action alone is insufficient to form the basis of an ATS claim, see Sosa, 542 U.S. at 738, 124 S.Ct. at 2769 (holding “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy”), and there is no allegation the subsequent six-month imprisonment and mistreatment was part of the conspiracy. The Garcia plaintiffs, thus, fail to state a plausible claim for relief against the Panamco Defendants for a violation of the law of nations. See 28 U.S.C. § 1350. We conclude the district court did not err in dismissing the ATS claims in the Garcia complaint for lack of subject matter jurisdiction.

Friday, August 14, 2009

Is there an E-Discovery Bubble

Check out this interesting post on the 3 Geeks and a Law Blog entitled "I'm calling it!! There's an E-Discovery Bubble". Here is a snippet:

There comes a point in time where you have to shake your head and say that we've created something that is unsustainable. Whether it was the Dot Com bubble in the 90's or the Housing bubble this decade, there is a point in which you have to stand back and say that reality is going to cause a backlash at some point and cause the bubble to burst. It is August 2009, and I'm calling it: "Electronic Discovery Is A Bubble" and in the next couple of years, if not sooner, it is going to burst.

Visit here for the full post.

Friday, August 07, 2009

Prof. Nowicki Posts Article on Apologies and Conflict Resolution

Professor Elizabeth Nowicki has recently posted an Article entitled Apologies and Good Lawyering on SSRN. Here is the Abstract:

In everyday life, apologies are common. For example, if one shopper bumps into another in a crowded grocery store, apologies abound. Or if a child on the playground accidentally crashes into another child, the crashing child will apologize. If the crashing child does not apologize, a teacher, playground monitor, or parent will instruct the child to apologize, because apologizing for hurting someone is the 'right' thing to do. This apology norm largely disappears if the crashing child grows up and becomes a lawyer, however. Despite empirical research showing that apologies have value in settlement, facilitate cost-effective dispute resolution, and are important to injured parties, it appears that lawyers do not regularly either suggest that a client ask for or suggest that a client offer an apology as part of a conflict resolution. Why does the instinct to facilitate dispute resolution with a sincere apology disappear when students enter law school or when law students become lawyers? Some suggest that lawyers – and consequently the clients they advise – disavow apologies as a matter of defense because apologies are viewed as costly admissions of liability. Others suggest that attorneys for injured parties have no obvious incentives to suggest apologies since quick dispute resolution results in smaller legal fees. Still others suggest that those who become lawyers tend to be logical and analytical, and tend to eschew conduct viewed as purely emotive, such as apologizing. This paper shows that a good lawyer must recognize the value of apologies in conflict resolution, litigation, and settlement, and this paper provides guidance for offering apologies.

This Article may be downloaded by visiting