August 2009

Professor Sherrilyn Ifill, following the ACS panel discussion on diversity and the federal courts, talked with ACSblog about why diverse backgrounds are important to judicial decision-making. Beyond keeping public confidence in the courts, Ifill, a professor at the University of Maryland School of Law, said judicial decision-making as a whole is improved by judges "who represent and are reflective of the larger society...."

Watch her interview below or download a podcast here.

 

In a recent decision, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit offered thoughts on the reach of Supreme Court rulings on standards for filing civil lawsuits. The high court has issued recent rulings, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, which according to some makes it much easier for judges to quickly dismiss civil lawsuits. In its 2009 decision in Iqbal, the Supreme Court said judges must draw on their "judicial experience and common sense" when deciding whether a plaintiff's complaint advances a plausible claim for relief. Justice Ruth Bader Ginsburg, who dissented in the case, later said that the majority opinion "messed up the federal rules" on civil litigation.

In a case before the Seventh Circuit, Judge Posner included dicta (language not pertinent to the holding) that Twombly and Iqbal may be limited, only applying to complex or potentially expensive litigation.

Posner wrote:

In our initial thinking about the case, however, we were reluctant to endorse the district court's citation of the Supreme Court's decision in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), fast becoming the citation du jour in Rule 12(b)(6) cases, as authority for the dismissal of this suit. The Court held that in complex litigation (the case itself was an antitrust suit) the defendant is not to be put to the cost of pretrial discovery - a cost that in complex litigation can be so steep as to coerce a settlement on terms favorable to the plaintiff even when his claim is very weak - unless the complaint says enough about the case to permit an inference that it may well have real merit. The present case, however, is not complex.