There’s lots of recent scholarship complaining about how pleading standards have gotten too stringent.  Professor Anne Ralph of Ohio State University Law School believes she’s found a solution.  In her article in the Yale Journal of Law & HumanitiesNot the Same Old Story: Using Narrative Theory to Understand and Overcome the Plausibility Pleading Standard, she outlines how plaintiffs might use the principles of narrative theory to meet the Twombly/Iqbal “plausibility” standard.
So, what exactly is “narrative theory”?  As Professor Ralph explains it:
Narrative theory answers the complex question of why narratives are persuasive. Narrative theory
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 In the several years since the Supreme Court decided Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, scholars and litigators have argued back and forth about the appropriate pleading standard for various kinds of lawsuits. One of the most vociferous parts of that debate is over whether class actions should be subject to increased pleading standards

Former federal trial attorney Matthew J.B. Lawrence (now a fellow at Harvard’s Petrie-Flom Center) has recently published an article, Courts Should Apply a Relatively More Stringent Pleading Threshold to Class Actions, 81 U. Cin. L. Rev. 1225 (2013), that makes … Continue Reading

 Dreaded deadline doom on a few projects (and some actual paying work) means that, unfortunately, today’s post will have to be light on original content.  

Fortunately, Judge Posner has an excellent review of Justice Scalia’s new book up at The New Republic, so I can just direct you there.  It’s classic Posner, and includes one of the most lucid critiques I’ve read on originalism:

The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography

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 Busy week means that this will be a brief post.  So I thought I might at least make it entertaining.  Several members of the Cornell Department of Computer Science [http://www.cs.cornell.edu/]  have published a paper in the Proceedings of the 50th Annual Meeting of the Association for Computational Linguistics titled You Had Me at Hello: How Phrasing Affects Memorability, which analyzes memorable movie quotes to see what makes them stick.  

The money quote:

In fact, comments provided by the human sub- jects as part of the task suggested two basic forms that such textual signals could take: subjects felt

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 At the DePaul symposium a few weeks back, Professor Suja Thomas argued that the Supreme Court should not take on "oddball" cases, because the outlying facts make for decisions that are too sweeping. (She’s made this argument before about Iqbal and Twombly, so you don’t have to wait for the DePaul Law Review’s Symposium Issue to get the basics.)

As I’ve mentioned before, Professor Thomas is no fan of oddball cases. She argues that:

the Supreme Court and some scholars, including Professor Richard Epstein, have justified the new standard on the basis of the costs in Twombly,

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To get lawsuits into court and past preliminary motions, plaintiffs often have to argue some pretty stupid things. They have to argue that they did not know coffee is hot or that they trusted Google Maps directions over their own eyes. Sometimes, to get a class action that far, plaintiffs’ lawyers have to argue that entire populations that dumb, such as when they argue that people did not know that Nutella is fattening. What’s a defense lawyer to do in situations like this?

The Third Circuit has offered some help. The lawsuit, McNair v. Synapse Group, Inc. … Continue Reading

For the last six or seven years, a growing academic literature has put forward the argument that the primary justification for class actions is not to compensate absent class members, but to deter corporate wrongdoing. That justification has formed the basis of a number of arguments, from Professor Fitzpatrick’s proposal that class action attorneys earn a 100% commission on their cases to Professor Lahav’s that the law should go a little easier on the class-action lawyer. It also underlies many of the fears that tightening the class-action rules may lead to rampant corporate misconduct.

Few practitioners or scholars have … Continue Reading

A few years ago, I attended an oral argument with a colleague. (He was there to argue a substantive motion in our case, I was there to take on the class-related issues.) It turned out we were in front of a hot bench that day: the judge clearly had formed several opinions of the case, and was not shy about peppering both plaintiff and defense counsel with questions–some seemingly out of left field–that forced each to justify his case. His approach clearly shook both sides a little. As we left without a decision on our motions, my colleague shook his … Continue Reading

There’s a fascinating strategic story buried deep within Snigdha Prakash’s book on the early Vioxx litigation, All the Justice Money Can Buy: Corporate Greed on Trial. It’s revealed in two passages, one toward the beginning of the book, one toward the end.

At the beginning of the book (and the trial it covers), New Jersey Superior Court Judge Carol Higbee [] proposes bifurcating several upcoming Vioxx trials into two phases: a general causation phase, followed by a damages phase. As Prakash reports:

The plaintiffs embraced the proposal. Trying several cases together would give them multiple opportunities to beat Merck

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Last month, I wrote about an old article of Professor Cass Sunstein’s, on Outrage.  In it, I mentioned that he discussed (albeit very briefly) an interesting idea, "rhetorical advantage." So, what does the term actually mean for folks interested in legal strategy?

What makes Professor Sunstein’s usage in Outrage so interesting is that he describes rhetorical advantage more as a feature of terrain than a deliberate strategy. And, to this practicing lawyer, that makes a lot of sense. Any given group, be it appellate court justices on a particular circuit, or the jury pool of a particular … Continue Reading