Category: General Law


Advice, For Law Students Too

This Sunday, The New York Times offered superb advice for undergraduates from a wonderful array of scholars, including my favorite (and for so many others) Martha Nussbaum.  Law students can learn1206351_romans from some of their insights as well.  Here are the highlights (with a few comments):

1. Reading great newspapers will help your writing. Most articles are models of clarity and substance–they banish jargon (and latin phrases) and so should you.  Follow their lead; you can’t go wrong.  (Linda Greenhouse, Dahlia Lithwick, David Margolick’s At the Bar columns from the past, and many more come to mind).

2.  Get lost in great books.  Don’t forget to read for you, not just for class.  It will help your writing and thinking.  (This summer, I re-read Anthony Lewis’s Make No Law: The Sullivan Case and the First Amendment, Rod Smolla’s Deliberate Intent: A Lawyer Tells the True Story of Murder By the Book, Martha Nussbaum’s Hiding From Humanity: Disgust, Shame, and the Law, and Dan Solove’s Understanding Privacy for just that reason).

3.  Take classes that stretch your mind, that interest you, rather than just focusing on classes that prepare you for the job.

4.  Seek out wonderful professors–what is lasting is how they’ve made you think, not the specifics of any given course.

5.  Write as much and as often as you can, and think about classes that ensure you do that.

6.  Don’t alienate your professor (and your colleagues–for better or for worse, you are part of a legal community now).


Iqbal Empirics

In response to my post yesterday, my colleague Orin Kerr asks whether Iqbal might lower the high costs of civil litigation by reducing the use of costly mechanisms such as discovery and summary judgment motions. This is a good question. 

In analyzing Orin’s question, the first thing to notice is that, while Iqbal might save some costs, the decision also imposes costs.  Because of Iqbal, pleading becomes more expensive.  Not only is it more expensive to draft the initial complaint, because no one knows any more exactly what needs to be in the complaint, but, as numerous cases already show, Iqbal is returning us to the days when a case begins with “polishing the pleadings”:  the defendant moves to dismiss, the court grants the motion with leave to replead, the plaintiff tries again, and we may go around multiple times (possibly including an appeal) before the plaintiff has a complaint that passes the applicable standards.  And then we get to the costs of discovery and summary judgment.

The view of the drafters of the Federal Rules (particularly Dean Clark, who was very clear on this point) is that polishing the pleadings is a waste of time and money and we might as well get right to the other mechanisms that we’re just going to get to anyway, after polishing the pleadings.

So it’s not as simple as saying that Iqbal might save costs.  What’s going to happen is that Iqbal will save some costs while imposing different costs.  And I think the biggest cost that Iqbal is meant to save is not so much disovery costs per se, but the costs of settlements coerced by plaintiffs bringing doubtful claims against defendants who end up settling to avoid litigation costs (this is suggested by the Court’s opinion in the predecessor case of Bell Atlantic v. Twombly).  The ultimate question is whether Iqbal‘s will save or impose costs on balance.

As I have previously acknowledged (before I gained fame and fortune on Concurring Opinions) this is an empirical question — and one that would be quite difficult to answer reliably.   The Civil Procedure professor community, including myself,  is, I think, biased in favor of the traditional answer (that strict pleading requirements end up costing more than they save) because that’s what we’ve been teaching the students for the last 70 years.  But really, we should admit that it is at least possible that Iqbal would produce savings in the long run.

But I am inclined to doubt it.  It seems more likely that Iqbal will just end up raising costs, by adding more pleading costs to discovery costs that will end up getting incurred anyway.  And more important, Iqbal seems unfair.  As some lower court cases are showing, Iqbal is trapping some plaintiffs in a Catch-22:  they can’t successfully plead their cases because they don’t have information that they can’t get without discovery, which can’t get started until they successfully plead.  (I suppose this will result in some savings, but again, I question whether there will ultimately be net savings.) 

Given that it’s very difficult to tell whether Iqbal will save or cost money in the long run, I am inclined to say that we should continue the fairer system of letting cases get started without insisting on too much detail in the pleadings.  But I would be open to rethinking the matter if anyone could come up with good empirical cost data on Iqbal.


Ranking law journals: a view from abroad

Let me offer an Antipodean perspective on the vexed issue of the ranking of law journals, and how this might affect scholarly behaviour. Legal scholars in New Zealand are to some extent pulled in different directions. There is a perceived obligation to service the New Zealand market by writing about legal issues of relevance to New Zealand lawyers. At the same time, publishing in international journals is generally considered to be more prestigious, with the placement of an article in an esteemed journal from the United Kingdom (such as the Law Quarterly Review) traditionally being considered ideal. Placement of articles in the United States, to my knowledge, has been rare.

Writing as I do in the area of comparative counterterrorism law, I have dipped my toes in the somewhat strange – at least to my eyes – world of American law reviews (more on that later). But might I be better off trying to place articles in UK or Australian journals? Is it possible to compare the quality of law journals across different jurisdictions? The Australian Research Council (ARC) has attempted just this rather imposing task. Predictably, the release of the draft rankings last year sparked controversy. As detailed in this story, well regarded Australian law journals such as the Sydney Law Journal and Melbourne University Law Review received B grades. Top UK Journals, such as the Modern Law Review and the Oxford Journal of Legal Studies likewise received B’s. The Cambridge Law Journal and Criminal Law Review got only C’s. What journals occupied the hallowed stratosphere of the top grade, A*? American law journals such as the Harvard Law Review, Yale Law Journal and Connecticut Law Review.

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Iqbal Keeps Spreading

I previously discussed how the Supreme Court’s Iqbal decision is going to have a big impact on federal civil litigation.  Jaya Ramji-Nogales suggested that maybe it won’t have such a big impact after all.  It’s still too early to say definitively who’s right, but take a look at this — Iqbal applied to a slip-and-fall case!

For those just tuning in, the Supreme Court’s decision last term in Ashcroft v. Iqbal upended some long-standing rules of pleading in civil procedure.  The previous understanding was that a civil complaint — the document that by which the plaintiff starts a civil case — just had to give the defendant a general notice of what the case was about.  It didn’t have to go into specifics or detail.  If the plaintiff says, “I worked for the defendant and the defendant fired me because of my race or religion,” that states a sufficient claim.  The plaintiff doesn’t have to say how she knows what the defendant’s motives were.  Sure, the defendant is eventually entitled to that information, but it doesn’t have to be in the complaint.  That’s what discovery is for.

Iqbal throws the rules into confusion.  Under Iqbal, the trial court gets to disregard allegations it regards as conclusory (a term the Supreme Court didn’t clearly define) and make some judgment about whether the complaint is sufficiently plausible to require a response.  Under this new regime, it’s far less clear that a one-sentence allegation about why the plaintiff got fired would be sufficient without some further allegations that show some evidentiary support.  Courts have been dismissing all kinds of cases on the basis of insufficient allegations, such as this dismissal of a case in which plaintiff alleged that she took the defendant’s drug and suffered a terrible injury as a result, which got dismissed because, in the court’s opinion, the plaintiff didn’t sufficiently allege how she knew the drug caused her injury.

Now we have the ultimate in Iqbal dismissals — a dismissal in a slip and fall case!  Plaintiff alleged that she slipped and fell on liquid on the floor of defendant’s store.  Insufficient! says the district court.  Plaintiff has to allege either that the store owner caused the liquid to be on the floor or that the owner had actual or constructive notice that the liquid was on the floor and failed to remove it within a reasonable time or warn the plaintiff of it. And how exactly is the plaintiff supposed to make these allegations without discovery? 

This is what’s wrong with Iqbal.  Of course if the plaintiff can’t prove all the elements of her claim under the applicable substantive law, she will ultimately lose.  But what does it matter if every last point is in the complaint?  The defendant knows perfectly well what the case is about — plaintiff slipped and fell in defendant’s store and claims that defendant is responsible.  We don’t need any more to get started.  There are other mechanisms to thrash out questions such as the questions raised by this case — specifically, discovery and motions for summary judgment.

As this case shows, Iqbal is going to send us back to the era of endless wrangling about exactly what has to be in the complaint.  We’re going to waste a lot of time polishing the pleadings.  And apart from everything else, it’s going to cause years of confusion.  Before Iqbal I could at least give a confident judgment about whether a complaint was sufficient.  Now I have no idea.  If people can’t even get a slip-and-fall case into court, we’re in trouble.

Update: As Jaya points out in the comments, the post attributed to her above was actually a post by Adam Steinman, transmitted to Concurring Opinions by Jaya.  Thanks for this correction and sorry for the error.


Bernie Madoff and the Unfortunate Consequences of Celebrity Bias

744040_jesterCelebrity is intoxicating.  We have long been willing to play the fool to the rich and powerful, even if that means turning a blind eye to signs of trickery.  In the late 1980s, a 37-year-old con artist convinced Duke University administrators and students that he hailed from the wealthy Rothschild family of France despite the fact that he spoke no French, drove a run-down car, and offered clipped out magazine articles to show his family’s homes. During a two-year charade, the imposter borrowed (stole) thousands of dollars from Duke and joined a fraternity. (I was an Duke undergraduate at the time, but alas did not know him).  More recently, Christopher Chichester tricked many into believing that he was a Rockefeller despite his gauche manners and outrageous claims (e.g, that he owned “the key to Rockefeller Center”).  As Clark Rockefeller, he gained admission to exclusive clubs and married a partner at McKinsey Consulting.  Only after Mr. Chichester kidnapped his daughter from his ex-wife did the police discover his true identity and connection to unsolved murders.120px-Bernie_Madoff_Cropped

Perhaps such celebrity bias had some role in the SEC’s bungling of the Bernie Madoff fiasco.  On Thursday, the S.E.C.’s Inspector General’s Report explored why the agency missed so many “red flags” about Madoff since 1992.  The report discussed missed leads, bureaucratic snafus, and investigators’ inexperience.  Investigators were far too believing because they were simply awed by him.  One investigator described Madoff as “a wonderful storyteller” and a “captivating speaker.”  As with the faux Rockefeller and Rothschild incidents, Madoff’s ruse worked for so long despite the clues of foul play perhaps because investigators and investors could not shake their sense of Madoff as a rich, powerful, and trusted financial guru.  Madoff’s celebrity reputation anchored their thinking, permitting Madoff to get away with his scheme for far longer than it should have.  As Madoff’s victims’ stories attest, celebrity bias had profoundly destructive consequences.

StockXchange Image; Wikimedia Commons Image


Criminal Law Treasure Trove

I’m passing on this link to a recent episode of This American Life.  It discusses the prosecution of Hermant Lakhani, who delivered what he thought was a missile to an FBI informant in Newark’s Gateway Hilton.  The episode is a must-listen for anyone interested in the prosecution of terror suspects, the entrapment defense, and juror deliberations. Co-Op readers from New Jersey might particularly appreciate the interview with gubernatorial candidate Christopher Christie, who was U.S. Attorney at the time (and is a Seton Hall Law alum).


On Failing to Omit Needless Words

E.B. Mourns Your Lack of Discipline

E.B. Mourns Your Lack of Discipline

All else equal, shorter law review articles are better than longer ones.  But bloat’s allies are legion: editors; footnote-related positional competition; bad publisher incentives, etc.  For fun, I decided to test a few of Strunk & White’s dreaded common needless phrases to see which appears most often in law review articles.  Here are the candidates: the winners follow after the jump.

“the question as to whether”

“there is no doubt but that”

“this is a subject which”

“the fact that”

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Law reform: Kiwi-style – the provocation defence


In my first year law course, I teach the students about the legislative process – suffice is to say that it is pretty riveting stuff, and is typically greeted by yawns and other expressions of disinterest. In any case, the one line summary I give at the end of class is as follows: before a bill can become law, it must pass through three readings in the House of Representatives and receive the assent of the Governor General. (The process is described more fully here.)

This process can drag out for years, or it can happen much more rapidly. Indeed former Prime Minister, Minster of Justice, Attorney General, Law Professor, and current President of the Law Commission, Geoffrey Palmer, once described the legislative process in New Zealand as being the fastest law in the West. This is in part due to some fairly permissive Parliamentary procedures such as the lack of a quorum requirement and urgency provisions allowing the fast-tracking of legislation. But equally important are certain structural features of the New Zealand legal system. First, the New Zealand Parliament is unicameral – Parliament’s one-time upper house, known as the Legislative Council, was abolished on 1 January 1951. Second, the executive government continues to be able to pass laws as it likes, despite the advent of more coalitions in the era of mixed member proportional representation – a system introduced in 1993.

New Zealand is also a small country, with a population of just over four million people. (Sheep continue to outnumber humans by a factor of twelve to one.) And so news of any serious crime, particularly murder, is pretty much a guaranteed six o’clock news story. The same is true of any resulting criminal trial. Certain criminal trials dominate news coverage for a time. This is unsurprising. What is perhaps equally unsurprising, but nonetheless disturbing, is how the outcome of a criminal trial may lead to reactionary legislating.

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What’s a Tweet?

Twitter’s application for a trademark registration on the word “tweet” was recently rejected, which led to a discussion among some colleagues and myself as to whether the word is a generic term. The argument in favor is that the word “tweet” has become a common term, which has entered dictionaries and even the AP style guide, as the linked article shows.

A basic principle of of trademark law is that no one can trademark a “generic” term, which is to say, the common term for article or service being sold. Thus, no one could own the exclusive right to sell toothpaste under the name “toothpaste.” That would hardly be fair to competing sellers of toothpaste, and the generic term also doesn’t perform the basic function of a trademark, which is to tell consumers the source of the product, not what the product is.

Nonetheless, I would say that “tweet” is not generic. Yes, “tweet” has become a common term, but with what meaning? To me, “tweet” means, “a short message carried via the Twitter service.” It doesn’t mean, generically, “a short message,” or even “a short message carried via some social networking service.” It is specific to Twitter. I don’t think of the short messages I send to my Facebook friends as “tweets.”

This usage is confirmed by that eminently reliable source, Wikipedia, which defines “tweet” as “A micro-blog post on the Twitter social network site, or the act of posting on it.” And says that a “tweet” is “A post on Twitter, a real-time social messaging system.”

So I would say that “tweet” still performs a trademark’s source-indicating function. It tells you that the thing named is associated with Twitter specifically. Perhaps people will soon start referring to any short message as a “tweet,” but it hasn’t happened yet. So I say that “tweet” is not generic.