Digital Dump

A random sampling of items k-nocking around in my keppe this morning:

1. I bumped into Bob Zarco last week and he was wearing blue suede shoes -- I call them F U shoes.

2. When does the filing of a lawsuit constitute "civil extortion" or worse yet, "criminal extortion"?

Ask Irvin's lawyer Larry Friedman, who has a history of vigorously and publicly denouncing suits filed against his client.

Maybe someone should ask David Lister, who filed the danged thing.

3. Where are all the women? Even among clerks at the Supreme Court?

4. I'll trade you two Twomblies and an Iqbal for a well-worn Conley:

What is the new test that replaced notice pleading as set forth in Rule 8? In short, there is now a standard of "plausibility" which requires the pleading of "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" of what is alleged in the complaint.⁹ In deciding what is "plausible" the trial court should not accord the presumption of truthfulness to so-called conclusory allegations, and perhaps more importantly, the Twombly Court held that factual allegations that are merely consistent with the elements of the claims did not cross "the line between possibility [or conceivability] and plausibility."¹⁰ The Twombly Court explicitly permits a court to consider inferences that favor the plaintiff as well as those that favor the defendant. This likely means that courts are now required to weigh competing inferences and find, at the motion to dismiss stage, that the inferences that can be drawn in plaintiff's favor are at least as strong, if not stronger, than the inferences that can be drawn in defendant's favor.¹¹

In Iqbal, the Court got very explicit and said a claim is plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" and to do that a court must "draw on its judicial experience and common sense."¹² Now that is and should be a frightening thought. When courts are told to draw on experience and common sense that means that predictability will vanish because every judge has had different experiences and has a different definition of common sense. What we will see is that depending on a judge's views, one judge will dismiss a claim where another would have let it survive.

Indeed, there are some early post-Twombly statistics. One scholar found that the grant rate of motions to dismiss Title VII cases went from 42 percent under the Conley regime to 54 percent under Twombly.¹³ A different academic found that in the year before Twombly, 54.2 percent of disability cases were dismissed on motion, but in the year after Twombly, 64.6 percent were dismissed.¹⁴ The same holds true for civil rights cases: 41.7 percent were dismissed under Conley, 52.9 percent under Twombly.¹⁵ The motion to dismiss may be seen as the new summary judgment motion, and we will see a continuing trend toward judges determining outcomes rather than juries.

5. I hate stats. And Justin Long.

I probably hate Justin Long a bit more.