December 2011

  • December 21, 2011
    Guest Post

    By Jonah Gelbach, a senior research fellow at the Yale Department of Economics Program in Applied Economics and Policy and a Yale Law School student.


    The Supreme Court’s 2007 and 2009 opinions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal upended Conley v. Gibson’s famous rule that a complaint attacked by a Rule 12(b)(6) motion to dismiss for failure to state a claim should be dismissed only if there is no set of facts under which the complaint’s claims could entitle the plaintiff to relief. Instead, Twombly and Iqbal require a plaintiff’s complaint to include allegations making entitlement to relief not just logically possible, but plausible.

    Critics have attacked Twombly and Iqbal for both raising pleading standards and injecting subjectivity into Rule 12(b)(6) adjudication. Kevin Clermont and Stephen Yeazell characterize the post-Iqbal situation as “Pleading Left Bleeding.” Civil rights and employment discrimination cases have raised special concern. Their plaintiffs might be especially unable to meet elevated pleading standards without discovery, setting up a need-discovery-to-get-to-discovery Catch-22. Joshua Civin & Debo P. Adegbile wrote in an ACS issue brief that Twombly and Iqbal might “create an undesirable safe harbor that effectively places some defendants beyond the reach of civil rights laws.”

    Not everyone is disappointed, to be sure. For example, attorneys Mark Herrmann and James Beck have written that “out-of-control litigation prompted the Supreme Court in Twombly to adjust the threshold pleading requirements for unleashing the legal process.”

    Normative questions aside, some observers cite a report the Federal Judicial Center (FJC) issued in March 2011 for the proposition that Twombly and Iqbal haven’t actually affected much. The report found that “there was no increase in the rate of grants of motions to dismiss without leave to amend,” including among civil rights and employment discrimination cases.

    But the FJC report also found that the share of filed lawsuits that face a Rule 12(b)(6) motion to dismiss increased substantially after Twombly and Iqbal — more than 50 percent --  depending on the type of lawsuit involved. In my paper, “Locking the Doors to Discovery?,” forthcoming as a student Note in volume 121 of the Yale Law Journal, I argue that the increase in the proportion of Rule 12(b)(6) filings is evidence of a “defendant selection effect.” Defendants who are more confident of victory at the 12(b)(6) stage will file motions to dismiss against cases that are more strongly pleaded and that the defendants would have answered before Twombly/Iqbal. Clermont and Yeazell express this point colorfully, writing that a defense attorney “commits legal malpractice if he or she fails to move to dismiss with liberal citations to Twombly and Iqbal.”

    Thus, defendant selection should increase the average quality of complaints that face Rule 12(b)(6) motions to dismiss after Twombly/Iqbal. Given that there was little change in the rate at which these motions to dismiss were granted, the result is that the FJC report is actually powerful evidence in favor of the contention that Twombly and Iqbal have had a substantial impact. If defendants file motions to dismiss against a stronger set of complaints but win just as often, then judges must be dismissing complaints that they would not have dismissed before. The end result is that more cases fail to reach discovery than would have before Twombly and Iqbal.

    In my paper, I use an economic model to try to quantify the impact that Twombly and Iqbal have had in preventing claims from reaching discovery.

  • December 20, 2011
    Guest Post

    By Sahar Aziz, an associate professor of law at Texas Wesleyan University School of Law and a fellow at the Institute for Social Policy and Understanding. This is a cross-post from The Huffington Post.


    On the same day that Rep. Peter King held the fourth "homegrown terrorism" hearing focused exclusively on Muslims, the White House released its Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the United States. Despite the White House's seemingly benign approach to counterterrorism, its implementation produces adverse effects similar to Mr. King's confrontational tactics.

    The White House Strategy proclaims, "Law enforcement and government officials for decades have understood the critical importance of building relationships, based on trust, with the communities they serve. Partnerships are vital to address a range of challenges and must have as their foundation a genuine commitment on the part of law enforcement and government to address community needs and concerns, including protecting rights and public safety."

    To someone unfamiliar with the history of community outreach to American Muslims, the strategy sounds ideal. However, the Obama Administration has sabotaged its own high-minded public position by adopting the Bush Administration's counterterrorism model that punishes the broad Muslim community rather than targeting genuine threats. Thus, the Administration's actual practices conform all-too-closely to Peter King's vision of terrorism being synonymous with Islam.

    While preventing terrorism before it happens is a legitimate strategy, the way in which it is currently implemented comes at a high price to a vulnerable minority -- Muslims in America.

  • December 20, 2011

    by Jeremy Leaming

    The dominance of a conservative legal orthodoxy might not be as solid as portrayed by several panelists at a recent Brookings Institution event about the “Conservative Legal Movement and the Future of Liberal Jurisprudence.”

    Pamela S. Karlan, a distinguished law professor at Stanford Law School, explained why many perceive the conservative legal movement as dominating the narrative of the Constitution, while William E. Forbath, a distinguished law professor and professor of history at the University of Texas, focused on sharpening a liberal response to the conservatives’ narrative of the Constitution primarily meant to protect individual interests, such as private property. Forbath also examined the Constitution’s promise of economic security and equality.

    Karlan (pictured), an ACS Board member, took exception with the overall tilt of the Brookings event that conservative legal activists have outmaneuvered liberals in advancing legal theories. Karlan, however, also leveled criticism of liberals who are cowed into silence or into dubbing themselves progressives.

    But first Karlan noted the circumstances, with which conservatives have seized upon to advance their legal precepts.

    “Today it is tempting to tell a story about the rise of the conservative legal movement as the inevitable consequence of a combination of strong ideas pressed by charismatic public figures, backed by tremendous resources,” Karlan said. “To be sure, conservatives have very skillfully played the hand that they held. But contingency has played a major role too.

    “If you go to the Brookings’ website to look for its description of the conference today, you’ll see the description that says ‘the conservative legal movement has shown remarkable success at defining the terms of the debate over jurisprudence, while various visions of liberal theories of law that confront conservative orthodoxy have struggled to gain currency in the political sphere. Conservative legal theorists have coalesced around a relatively compact and politically effective set of ideas while their liberal critics have offered a diverse series of responses.”

    Continuing, Karlan said, “Now if some other public policy organization were to have held a conference in say 1968, it could have taken the same paragraph, swapped the words ‘conservative’ and ‘liberal’ and held a parallel discussion to the one were going to be holding today.”

    Conservatives Karlan maintained, “Have been as lucky as they’ve been smart.” A few tweaks to history, she said, and the landscape would likely look really different.

  • December 19, 2011

    by Jeremy Leaming

    Newt Gingrich’s outlandish commentary on so-called radical judges is garnering, rightfully so, plenty of attention, but as American University Law Professor Jamie Raskin writes in this piece for The Huffington Post, there are other Republican presidential candidates, whose positions on the judiciary are just as worrisome.

    Raskin, also a Maryland State senator, noted that Gingrich’s “outbursts against judicial independence” have raised the hackles of a number of prominent conservatives. And one can see why he says. During the last GOP debate, Gingrich’s comments about the judicial branch, Raskin says, “were divorced from reality and indeed comical for a self-proclaimed ‘historian.’ He called the courts ‘grotesquely dictatorial, far too powerful, and … arrogant in their misreading of the American people.’”

    In particular Gingrich claimed he was seriously peeved over the federal appeals court opinion that found constitutionally suspect the practice of reciting in public schools the Pledge of Allegiance, which was made religious during the Eisenhower administration with the assertion of the words “under God.” That decision, as Raskin notes, was later reversed by the U.S. Supreme Court. Nonetheless, Gingrich bandied about that federal appeals court opinion, along with a few others, to blast the federal courts and claim that if he were president he’d take action to reign judges in. (On a CBS’s “Face the Nation,” Gingrich said there is “no reason the American people need to tolerate a judge that is out of touch with American culture,” and that if he were president he’d order federal Marshalls to arrest such judges.)

    But Raskin warns that voters who care about an independent judiciary should not be lulled into believing that Mitt Romney is any better on the matter.  

    Raskin points out that “Romney’s new constitutional advisor is none other than former Judge Robert Bork, an astounding selection to head up the Governor’s legal and constitutional affairs advisory team. Bork is a fiercely pro-corporate, anti-voting rights, anti-choice, anti-feminist, pro-censorship, anti-gay, anti-free speech, anti-separation of church and state, and evolution-denying ideologue who has described the 9th Amendment to the Constitution defending the rights of the people as ‘an inkblot’ and called for allowing Supreme Court constitutional decisions to be overturned by majority vote in Congress as well as a constitutional amendment to deny gay people the right to marry.”

  • December 19, 2011

    by Nicole Flatow

    The Senate concluded its last official day of business for the year on Saturday, without taking action on more than 50 judicial and executive branch nominations ready for an immediate Senate confirmation vote.

    Majority Leader Harry Reid had asked the Senate to quickly confirm all 50 nominees, but Minority Leader Mitch McConnell objected to his request, saying that he would not agree to any confirmations without assurances from President Obama that he would not make any recess appointments during the Christmas break, The Hill reports.

    “By refusing to consent to votes on consensus nominees before the end of the session, Senate Republicans are setting another damaging standard that will make it difficult for future Presidents of either party to fill judicial vacancies,” said Senate Judiciary Chairman Patrick Leahy in reaction.

    Among the nominees left behind were 21 judicial candidates, almost all of whom were approved by the Senate Judiciary Committee with significant bipartisan support. But these nominees, who would have once been confirmed without delay, have been subjected to unprecedented obstruction.

    Last month, Senate Republicans filibustered the nomination of former New York State solicitor general Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit, who had broad bipartisan support and was rated unanimously well qualified by the American Bar Association.

    In a New York Times column reacting to the news, American Constitution Society Board Member Linda Greenhouse lamented, “Now that another highly qualified judicial nominee has been left as road kill, the question is how much lower can the confirmation process sink.”

    Added Sen. Leahy, “It is wrong to dismiss the delays resulting from the Senate Republicans’ obstruction as merely political tit for tat. This is a new and damaging tactic Senate Republicans have devised.  They are stalling action on noncontroversial nominees. Meanwhile, millions of Americans across the country who are harmed by delays in overburdened courts bear the cost of this obstruction.”

    Leahy continued: