• May 19, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; Guttman is a member of the ACS Board of Directors.

    *This piece originally appeared on The Global Legal Post.

    When the United States Supreme Court issued its decisions in Bell Atlantic Corp v Twombly, 550 U.S. 544 (2007) and Ashcroft v Iqbal, 556 U.S. 662 (2009), there was sea change in the standard by which judges evaluated lawsuits to determine their sufficiency to withstand a motion to dismiss. Rather than merely placing a defendant on notice of a claim, the Court established a new standard. Plaintiffs must allege facts allowing a court to find that a claim is plausible. In reviewing the allegations of the complaint, courts are challenged to weed out conclusory statements and base their analysis on only the factual pleadings of the Complaint.

    Naturally, Iqbal and Twombly have raised serious access to justice issues for plaintiffs who must muster the facts without an opportunity to gather evidence through discovery. The “plausibility” standard is of course entirely subjective; what is plausible to one judge based on his or her life’s journeys may not be plausible to another. And with the challenge to plead facts, plaintiffs are undoubtedly encouraged to put the “kitchen sink” into their complaints and plead complaints that are exponentially larger than those of yesteryear.  

    With all of the problems caused by Iqbal and Twombly, there is a nugget of gold that can be snatched as a teaching lesson. The notion that litigants are instructed to make their cases based on facts and not conclusions or hyperbole, is a solid concept.  

  • 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.”

  • January 12, 2011
    The fevered effort to bar judges from citing foreign or international law is misguided, uninformed and a threat to democracy, authors of a new ACS Issue Brief assert.

    In "Oklahoma State Question 755 and An Analysis of Anti-International Law Initiatives," (pdf) law professors Martha F. Davis and Johanna Kalb write that Congress and state lawmakers are increasingly considering measures to prohibit judges from citing international law in unnecessary attempts apparently rooted in "a perceived need to defend Christian values, concern about state/federal sovereignty, fear of judicial activism, and belief in American exceptionalism." The authors cite the recent ballot measure called Question 755 approved in the fall by Oklahoma voters that states, "The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law." Apparently in Oklahoma some lawmakers and religious right advocacy groups were concerned about a "takeover of Oklahoma by Islamic extremists who want to undo America from inside out." (The measure is currently facing a constitutional challenge in court.)

    Similar measures to bar citation or consideration of foriegn authorities have also been advanced in Congress and other state legislatures, such as Arizona, Iowa and South Carolina.  

    But Davis, a law professor at Northeastern University Law School, and Kalb, a law professor at Loyola University College of Law, write that the concerns motivating such measures are unfounded and could lead to laws that violate the U.S. Constitution, and seriously disrupt the nation's international commitments.

    The Constitution, the authors note for example, states that "treaties are the Supreme Law of the Land," and that state constitutions "almost always explicitly or implicitly acknowledge the binding nature of ratified treaties."

    "The prominence," the authors continue, "accorded to treaties in both the Federal and state constitutions reflects the understanding that ‘if the United States [is] to bargain effectively, the national government must not only have the power to conclude treaties but to compel states to observe them.'"

    And just one state's "refusal to permit its courts to enforce the United States' international obligations puts the entire nation's credibility at risk, with potentially devastating results for the country's ability to protect its citizens and businesses," the authors write. "On a wide range of matters, from the detection and prevention of terrorism to the regulation of trade and monetary policy to the protection of the environment, the success of the United States' efforts depends upon its ability to follow through on its international commitments."

    Moreover, the authors note a long tradition of American courts citing international and foreign authorities.

    "In fact," they write, "citation of international and foreign law is a venerable practice in the U.S. judicial system, dating back to the founding period. A majority of the U.S. Supreme Court has continued this practice in recent years, sometimes in cases that concern hotly debated issues of law and public policy."

    Even Supreme Court Justice Antonin Scalia, who has groused about his colleagues' use of foreign authorities in their decisions, has taken the approach. As noted by Scott Lemieux at the blog Lawyers, Guns and Money, Scalia recently cited a House of Lords opinion in a dissent. "Seriously," Lemieux writes, "there is of course nothing the slightest bit objectionable about citing a foreign court as part of a larger argument about American law. This whole 'citing foreign law' controversy, which Scalia has at times attempted to stoke, is just culture war rube-running, invoked solely to argue against outcomes people disagree with for independent reasons."

  • October 19, 2009
    Guest Post

    By Nan Aron, President, and Jennifer Meinig, Legislative Counsel, Alliance for Justice

    A new bill that would provide much-needed relief for the federal judiciary is caught up in the "say no to everything" approach of Senate Republicans.

    No one disagrees that American courts need more judges. What's different now is that rather than both parties working together to pass legislation to create more seats, Republicans are refusing to support this effort.

    As Senator Patrick Leahy (D-Vt.), Chair of the Senate Judiciary Committee stated in a letter to The Wall Street Journal on Oct. 14: "Just as I have sponsored bipartisan bills incorporating the Judicial Conference's recommendations during the past eight years, I have done so again this year. The difference this year is that no Senate Republican is cosponsoring the effort. They have all apparently had a change of heart now that we have a Democratic president."

    Senator Leahy, along with 18 co-sponsors, recently introduced The Federal Judgeship Act of 2009 to address the needs of our overburdened judiciary. The legislation would establish 12 new judgeships in six courts of appeals and 51 new judgeships in 25 district courts. The Act mirrors the recommendations of the Judicial Conference of the United States - chaired by Chief Justice John Roberts - which carefully assessed court workloads and other local factors including the number of senior, magistrate, and visiting judges; geographical factors; and case complexity. The Judicial Conference conducts a rigorous six-step process before making a final judgeship recommendation to Congress in its biennial report. The outcome balances the need to control growth with the need to seek vital and important resources appropriate for the judiciary's caseload. 

    A similar bill introduced last year had the backing of a number of Republican Senators, including Sens. Orrin Hatch (R- Utah), Chuck Grassley (R-Iowa), Jon Kyl (R-Ariz.) and Lindsey Graham (R-S.C.) who voted for its passage in the Senate Judiciary Committee. Currently, this year's bill only has support from Democratic members. Support from senators on both sides of the aisle will be critical to passage. In 1990, a Democratic Congress and a Republican president came together in bipartisan fashion to address the resource needs of a coequal branch of government.