Justin Long Must No Longer Appear On My Computer Screen.

It feels a bit slow around here, no?

Sure we have the Chinese Drywall trial and Rothstein's sentencing, but you can feel the lawyers and judges starting to slow down, plan their North Carolina or Colorado summer trips, and ease up on the usual nonsense we see day to day.

Me, I'm heading to LA to put a permanent end to this intertubes hipster phenomenon known as "Justin Long."

(I have a feeling the world won't notice.)

Anyone else have anything interesting to report?

Let's see, this is good news:

President Barack Obama is not only breaking barriers in his appointments to the highest court in the land, he’s quickly reshaping the lower ranks of the federal judiciary, nominating an unprecedented number of minorities and women.

Monday night, the Senate confirmed three of Obama’s judicial picks — all of them women. Among them is Lucy Koh of California, who is slated to become the nation’s first Korean-American district court judge.

Also pending confirmation is Goodwin Liu, who would become the first Taiwanese-American federal appellate court judge — though his nomination is threatened by Republicans who believe he’s too liberal.

Of Obama’s 70 appellate and district court nominees, 44 percent are female and 43 percent are minorities, according to recent analysis by the Alliance for Justice, a liberal advocacy group. By contrast, only 22 percent of President George W. Bush’s 322 confirmed judges were female and less than 18 percent were minorities.

Or is it, says this idiot:

“When you make law representative of America, you are undermining the objective” of a fair and impartial judiciary, said Stephen Presser, professor of legal history at Northwestern University Law School. “What you’ve got here is the opposite of John Roberts’s notion that judges ought to be umpires.

“When you send a message of inclusiveness, it’s a dangerous move, and it makes the court more political than it needs to be,” Presser added.

Exactly!

I think he's saying all the umpires should be white?

Or they should all be like Jim Joyce?

Oh hail, what Justice Souter says.

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.