rhetoric
More Stringent Pleading for Class Actions?
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…
Posner on Scalia
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…
Rhetoric – Crafting a Memorable Line
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…
Rhetoric – Oddball Cases and Slaughtered Hogs
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…
“Future Injury” versus “Fool Me Once” – McNair v. Synapse Group Inc.
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…
Classic Scholarship – Class Action Cops
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…
Book Review – How Judges Think
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…
The Risks of Bifurcation – Book Review: All the Justice Money Can Buy
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…
Six Ways To Gain Rhetorical Advantage in Class Actions (Insight from Other Strategists – Dan & Chip Heath’s Made to Stick))
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…