Author: Adam Steinman


Signing Off (Plus Some Advice for Law School Admissions Committees)

In the coming weeks and months, law school admissions committees will be making decisions on the Class of 2013. And they’ll be watching the numbers carefully, trying to make sure their inputs look good in the next U.S. News rankings. If your school needs help with GPA numbers but has some cushion on the LSAT, this star of MTV’s Jersey Shore could be just the ticket. As covered here, here, and here, Vinny Guadagnino boasts a 3.9 undergraduate GPA, although he calls his LSAT score “mediocre.” He says that law school’s “on the back burner,” but maybe now that his stint on the show is over he’ll be willing to entertain offers.

Speaking of stints being over, I wanted to thank Dan, Jaya, and the rest of the Concurring Opinions crew for the opportunity to guest blog here these last few weeks. I’ve really enjoyed it.


Eight Months of Iqbal: Part 3

In this last of three posts on Twombly and Iqbal, I want to talk about the bills now pending in Congress (one in the House and one in the Senate) to overturn these two decisions. 

The Notice Pleading Restoration Act (S. 1504) would provide:

Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).

The Open Access to Courts Act (H.R. 4115) would provide:

A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff’s claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.

Legislation along these lines would certainly be valuable to the extent that it would foreclose some common misreadings of Twombly and Iqbal that would indeed result in a much stricter pleading standard. As I explain in my earlier post, however, Twombly and Iqbal should not be read as allowing courts to disregard allegations for lack of “plausibility.” What was fatal in Twombly and Iqbal was the fact that allegations necessary to establish a claim for relief were, in the Court’s eyes, presented as “mere legal conclusions.” The plausibility inquiry (which, as H.R. 4115 suggests, assesses whether the nonconclusory allegations are sufficient to raise an inference of liability) is actually a method to save complaints that otherwise rest on mere conclusory allegations.

Nor should Twombly and Iqbal be read to overturn longstanding notice-pleading precedents like Conley. Read correctly, the framework established by Twombly and Iqbal is not inconsistent with (to quote S. 1504) “the standards set forth by the Supreme Court of the United States in Conley v. Gibson.” Admittedly, Twombly set aside Conley‘s “beyond doubt . . . no set of facts” language (which H.R. 4115 would explicitly reinstate). But what Twombly “retire[d]” was merely what it called a “focused and literal reading” of this phrase that would have precluded dismissal “whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery.” The Supreme Court had never read Conley this way. If it had, a complaint that alleged nothing more than “The planet Earth is round” would survive, because any number of actionable facts might be consistent with the Earth being round.

Properly understood, Conley did not preclude dismissal as long as any set of facts would entitle the plaintiff to relief. It precluded dismissal unless “the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” This merely confirms that speculation about the provability of a claim is not a proper inquiry at the pleadings phase; provability is relevant only when it appears “beyond doubt” that the plaintiff cannot prove her claim. But the Twombly majority itself endorsed this idea; it wrote that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” The dispositive question is — and always has been — what makes something a “well-pleaded complaint”? Conley and Twombly provide the same answer: “all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”

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Eight Months of Iqbal: Part 2

In my earlier post, I argued that the Supreme Court’s approach to pleading in Twombly and Iqbal is not necessarily inconsistent with the pre-Twombly notice-pleading framework. On a correct reading, the admittedly-problematic plausibility inquiry is not a basis for disregarding allegations in a complaint. When a complaint provides non-conclusory allegations for each element of a claim for relief, those allegations must be accepted as true, without regard to their “plausibility.”

There is no doubt, however, that the lower federal courts are paying a lot of attention to Twombly and Iqbal. My article The Pleading Problem ranks Supreme Court decisions in terms of the frequency with which they have been cited by federal courts. The figures in my current draft were as of June 30, 2009 (they will be updated in the final version). But even then, Twombly was #17 all-time with over 14,000 citations by federal courts. As of today, its count is nearly 22,000, which will place it very comfortably in the top-10. Iqbal is just getting started, but over the last eight months it has been cited at a remarkable rate of over 600 decisions per month.

That said, an opinion’s citation frequency alone doesn’t tell you what courts are actually doing with that opinion. That’s the far more interesting question. There are certainly federal courts whose approaches to pleading after Iqbal reflect a much stricter standard. Jon Siegel identified a slip-and-fall case in an earlier Concurring Opinions post, Alexi Lahav has noted some others on the Mass Tort Litigation Blog, and I mention a few in my forthcoming article. In this post, I want to flag some cases where the lower federal courts are at least on the right track.

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Eight Months of Iqbal

It’s hard to imagine a topic in civil procedure that has garnered more attention recently than pleading standards. The Supreme Court’s decision last Term in Ashcroft v. Iqbal (which embraced its controversial 2007 decision in Bell Atlantic v. Twombly) prompted an onslaught of commentary and critiques (including a couple of excellent Concurring Opinions posts by Jon Siegel here and here). Particularly troubling about these decisions is the idea that judges should subjectively determine — without hearing any evidence or testimony — whether the plaintiff’s claim is a “plausible” one. The Iqbal decision hit its 8-month anniversary this week, so I figured I’d take this opportunity to share a few thoughts on federal pleading standards in the post-Iqbal era. I’m hoping to follow up with posts about how the lower courts have been handling Twombly and Iqbal, and on the proposed legislation now pending in the House and Senate to overturn these decisions.

First off, I agree with many of Twombly‘s and Iqbal‘s critics. At best, these rulings appear to be result-oriented decisions designed to terminate at the earliest possible stage lawsuits that struck the majorities as undesirable. And inviting the “plausibility” concept into pleading doctrine was extremely problematic. It would be doubly unfortunate, however, if courts compound these troubling decisions by misreading them to drastically change federal pleading standards going forward. As I argue in my article The Pleading Problem, 62 Stanford L. Rev. ___ (forthcoming May 2010), a careful reading of these cases reveals an approach that is not necessarily inconsistent with the notice-pleading framework that most attorneys, judges, and professors alive today learned when they were in law school.

How is this possible? For starters, the majorities in Twombly and Iqbal left the core principles of the notice-pleading era in place. Twombly, in fact, explicitly endorsed Conley v. Gibson‘s command that the complaint must merely “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Although Twombly abrogated one phrase from Conley (that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”) this phrase was never taken as literally as the straw man that Twombly struck down. The true meaning of this phrase was simply that speculation about the provability of a claim is not a proper inquiry at the pleadings phase; provability is relevant only when it appears “beyond doubt” that the plaintiff cannot prove her claim. As to this point, Twombly is completely on board; Justice Souter wrote that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”

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Erie and Class Actions: Waiting for the Supreme Court’s Decision in Shady Grove

While many children are spending today waiting for Santa, I thought I’d talk about a Supreme Court decision that the civil-procedure world is eagerly awaiting: Shady Grove v. Allstate, which was argued last month. Unlike Santa, a Dec. 25th arrival is doubtful. But Shady Grove could be the most important decision on the Erie doctrine in years. The case confronts a significant issue at the intersection of judicial federalism and civil litigation: when is a federal court bound by state law on whether a class action should be certified? (If folks are interested in a pre-Shady Grove examination of this issue, check out my 2008 article What Is the Erie Doctrine? (And What Does It Mean for the Contemporary Politics of Judicial Federalism?), 84 Notre Dame L. Rev. 245.)

Shady Grove is a putative class action alleging violations of New York state insurance law. It was filed in federal court based on the new form of diversity jurisdiction created by the 2005 Class Action Fairness Act (CAFA). Here’s the rub: New York law precludes class actions for statutory-damages claims like the one in Shady Grove. Federal law, on the other hand, would allow a class action if the general requirements of Rule 23 are satisfied. It’s a classic Erie-Hanna-Rules Enabling Act problem. Is the federal court bound by New York’s bar on this kind of class action? Or may the federal court apply the federal approach to class certification and, potentially, certify the class despite New York law?  

It is somewhat ironic that the Supreme Court is confronting the Erie/class action issue in a case where state law is more hostile to class actions than federal law. The conventional wisdom has long been that a defendant opposing a class action has better odds in federal court than in state court. But many of the arguments the Shady Grove defendants are making, if the Court accepts them, could benefit plaintiffs in cases where the state-law approach is indeed more friendly to class actions. If New York’s law prohibiting certain class actions is held to be binding in federal court, a more lenient state-law approach to class actions could be binding as well.

So if the Supreme Court in Shady Grove agrees with the defendant and holds that state law governs, it may well be that what’s good for the goose (defendants) is also good for the gander (plaintiffs). That could have a remarkable effect on judicial federalism in the post-CAFA era. Consider the common scenario, where a defendant invokes CAFA and removes a case to federal court in order to avoid a more lenient state-court approach to class certification. The logic of the defendant’s arguments in Shady Grove could mean that the state’s approach to class certification would be binding in federal court thanks to the Erie doctrine. The consequences could even extend beyond class certification. After the Supreme Court’s decisions in Twombly and Iqbal, some litigants may find a federal pleading standard that is stricter than the one that applies in state court a block away. Depending on how Shady Grove is decided, it could pave the way for plaintiffs to argue that more lenient state-law pleading standards should be binding in federal court via Erie (my Erie article examines this possibility in more detail).

(Cross-posted at Civil Procedure & Federal Courts Blog)

PS: As in Shady Grove, the litigants in Erie were also not in their typical positions vis-a-vis the larger federalism question. The Erie plaintiff, Mr. Tompkins, wanted to use “federal common law” to displace state tort law. But as a general matter, such federal common law tended to benefit corporate and business interests like The Erie Railroad Company. That’s probably why Erie’s lawyers never made the argument, which Justice Brandeis ultimately embraced, that federal courts lacked authority to impose such federal common law.


48 Hours To Go: The Give Blog

Last month, law professor Suja Thomas (Illinois) and her husband Scott Bahr challenged the world to donate to five charities — The Hunger Project, The Grameen Foundation, Safe Passage, Catholic Charities USA and the Eastern Illinois Foodbank — and they would match those donations up to $50,000. Their Give Blog challenge lasts until Thursday (12/24).

Read their initial challenge, visit their blog, and then email them at to make your donation!

For additional coverage, see the Faculty Lounge, TaxProf Blog, and the Wall Street Journal.


Justice Sotomayor, Civil Procedure, and the “Tradition” of Unanimous Debut Opinions

Yesterday brought the Supreme Court’s first decision in a case argued this Term. The Court in Mohawk Industries v. Carpenter writes:

“The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.”

The issue of when interlocutory district court orders can be immediately appealed is one that’s particularly interesting to me (though perhaps not to many others outside the civil procedure world). From a historical perspective, Mohawk is significant as the first opinion authored by Justice Sotomayor. She is thus forever linked to civil procedure (as is Chief Justice Roberts, I might add, whose debut opinion involved the attorney-fee provision in 28 U.S.C. § 1447(c). See Martin v. Franklin Capital Corp., 542 U.S. 132 (2005)).

Justice Thomas’s concurring opinion in Mohawk has also attracted attention. Although he agrees with the Court’s result, Justice Thomas writes that Justice Sotomayor’s opinion “needlessly perpetuates a judicial policy that we for many years have criticized and struggled to limit.” He concludes:

“I would leave the value judgments the Court makes in its opinion to the rulemaking process, and in so doing take this opportunity to limit — effectively, predictably, and in a way we should have done long ago — the doctrine that, with a sweep of the Court’s pen, subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea.”

Some have argued that Justice Thomas’s opinion contravenes the Supreme Court’s “tradition” that a new Justice’s first opinion be a unanimous one. (See Eric Muller’s post at The Faculty Lounge: Clarence Thomas “Welcomes” Sonia Sotomayor to the Supreme Court). The New York Times described the concurrence as “testy” and “a swipe at his new colleague.” On the other hand, Mohawk was unanimous in the sense that all nine Justices agreed in the result. And Justice Thomas did sign on to two whole paragraphs of Justice Sotomayor’s opinion (“I concur in the judgment and in Part II-C of the Court’s opinion”). What do folks think?

At the end of the day, maybe it doesn’t really matter. Justice Breyer did not enjoy the benefit of this so-called tradition. He prompted outright dissents from Justices Scalia and Thomas in his first opinion. See Allied Bruce Terminix v. Dobson, 513 U.S. 265 (1995). Then again, Justice Breyer went on to serve a remarkably long tenure as the Court’s most junior Justice. Could there be a “Curse of the Nonunanimous Debut Opinion”?

(Cross-posted at the Civil Procedure & Federal Courts Blog)


Commentary on The Federal Courts Jurisdiction and Venue Clarification Act of 2009 (H.R. 4113, now in Congress)

Now pending before Congress is H.R. 4113, a.k.a. The Federal Courts Jurisdiction and Venue Clarification Act. The Act could certainly use a workup by the House Acronym Committee (maybe I have soccer on the brain after Friday’s World Cup draw, but “FC JAVCA” sounds like it could be a mid-tier European football club). All kidding aside, the Act makes a number of commendable improvements, many of which were recommended by a recent project of the American Law Institute (ALI).

For more information on the bill, see the Library of Congress’s website here. The full text of the bill is available here(.xml format) or here (.pdf format). Earlier coverage of the bill is here. Among other things, the Act would amend Title 28 with respect to removal and remand procedure, venue, and actions involving permanent resident aliens and foreign corporations and insurers. This post summarizes (and flags some potential concerns with) the Act’s provisions dealing with the amount in controversy required for diversity jurisdiction. Under current law, the amount in controversy must exceed $75,000.

First, the Act would index the amount-in-controversy threshold to automatically adjust for inflation. [Act, § 103.] Beginning in 2011, the $75,000 threshold would be adjusted every five years according to the percentage change in the Consumer Price Index. If you’re worried about the amount in controversy becoming $83,516.44, have no fear; the amount will be rounded to the nearest multiple of $5,000.

Second, the Act has a number of provisions dealing with a plaintiff’s ability to preclude diversity jurisdiction by declaring that it will neither seek nor accept a judgment in excess of the amount in controversy threshold. [Act, § 104.] Making such a declaration in state court will prevent removal to federal court “as long as the plaintiff abides by the declaration and the declaration is binding under the laws and practice of the State.” If the plaintiff fails to abide by this declaration, the case can be removed within 30 days after the defendant receives “an amended pleading, motion, order or other paper from which it may first be ascertained” that the plaintiff seeks or is willing to accept a judgment in excess of the threshold for diversity jurisdiction. The Act also provides that a removed case may be remanded to state court if the plaintiff makes a similar declaration in federal court within 30 days of removal. In that situation, “the district court shall remand the action to State court unless equitable circumstances warrant retaining the case.”

One possible concern with these provisions is that they do not allow “re-removal” if the plaintiff who makes the declaration in federal court then reneges on the declaration after getting back to state court. The new language that would allow removal after a plaintiff reneges applies only “[i]f the plaintiff has filed such a declaration in state court but thereafter fails to abide by that declaration.” (emphasis added)

Third, the Act codifies the general rule that “the sum demanded in good faith in the initial pleading [the state court complaint] shall be deemed to be the amount in controversy.” [Act, § 105(b), to be codified at 28 U.S.C. § 1446(b)(4).] It then provides that the notice of removal may assert the amount in controversy required for diversity jurisdiction where either (a) nonmonetary relief is sought, or (b) “State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded.” The defendant must then establish to the federal court by the preponderance of the evidence that the amount-in-controversy threshold is met.

One concern with this provision is that it does not authorize the notice of removal to assert the amount in controversy if state practice does permit demand for a specific sum but the initial pleading just fails to make one. Arguably the notice of removal should be able to assert the amount in controversy in that situation as well. 

I’m hoping to blog on other provisions in the Act in the near future. In the meantime, feel free to use the comments to share your own thoughts.

(Cross-posted on the Civil Procedure & Federal Courts Blog)


Congress Fixes Mistake!

What should courts do when the “plain language” of a legal text would lead to troubling, unanticipated consequences? Should they wait for the text to be formally amended? Or should they literally take the law into their own hands and fix the problem themselves? I blogged earlier about the possibility that language in a 2005 amendment to the Texas Constitution could invalidate all Texas marriages (including my own!). I have an obvious personal stake in that particular issue, but I’m interested more generally in such problematic language, particularly in the context of civil procedure and federal jurisdiction. Today officially lays to rest a classic example of that — the 2005 Class Action Fairness Act’s 7-day “deadline” for appealing certain jurisdictional rulings.

The original language in 28 U.S.C. § 1453(c)(1) required that such appeals be brought “not less than 7 days” after the district court’s order. Although the goal of this provision was to set a 7-day deadline, the enacted text did precisely the opposite — it imposed a 7-day waiting period and set no outer deadline. What’s the appropriate judicial response? Rewrite the statute by interpreting “less” to mean “more,” thereby imposing a 7-day deadline? Or adhere to the literal text, thereby imposing a 7-day waiting period with no outer deadline? For litigants, the only safe move was to appeal exactly 7 days after the district court’s order, which would make the appeal timely under either a not-more-than-7-days or a not-less-than-7-days standard.

I wrote about this problem in my article “Less” is “More”? Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act’s Appellate Deadline Riddle, 92 Iowa L. Rev. 1183 (2007). Back then, every circuit to consider the question rewrote the statute and imposed the 7-day deadline, although six Ninth Circuit judges disagreed in a vigorous dissent from a denial of en banc review. My argument was that courts should adhere to the statute’s plain language (which would impose no outer deadline on CAFA appeals) and instead rely on Fed. R. App. P. 4’s default deadline of 30 days. The Seventh Circuit eventually adopted that approach, see Spivey v. Vertrue, 528 F.3d 982 (7th Cir. 2008), creating a circuit split that would force either Congress or the Supreme Court to resolve the issue.

Congress responded and, effective today, the problem is solved. Legislation enacted earlier this year provides: “effective Dec. 1, 2009, subsec. (c)(1) is amended by striking ‘not less than 7 days’ and inserting ‘not more than 10 days.'” Public Law 111-16, § 6(2). This is a commendable solution, but my sense is that such congressional initiative is the exception rather than the rule. A counterexample that civil procedure folks know all too well is the saga of the supplemental jurisdiction statute, for which uncertainty lingered from its 1990 enactment until — and perhaps beyond — the Supreme Court’s 2005 decision in Exxon Mobil v. Allapattah, now a staple in civil procedure casebooks. (If readers are interested, see my article on that decision, Sausage-Making, Pigs’ Ears, and Congressional Expansions of Federal Jurisdiction: Exxon Mobil v. Allapattah and its Lessons for the Class Action Fairness Act, 81 Washington L. Rev. 279 (2006).)


The Bachelor?

Thanks to Dan, Jaya, and everyone else at Concurring Opinions for inviting me to join its distinguished guest-blogging ranks. I’m hoping to blog about a number of procedure-related topics this month, but I have to begin with an issue that hits even closer to home…

News out of Texas suggests my marriage is no longer valid. My wife and I were married there seven years ago, but language in a 2005 amendment to the Texas Constitution (designed to forbid gay marriage) may have brought a premature end to our state-sanctioned union — and to the entire institution of marriage in the State of Texas.

The argument that marriage is now illegal in Texas has been put forward by Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for attorney general. (See here, here, here, and here.) The 2005 amendment defined marriage to “consist only of the union of one man and one woman.” But subsection B of the amendment provided:

“This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

As I understand the argument, here’s the problem: Marriage itself is a “legal status identical or similar to marriage.” Ergo, marriage is something the State of Texas “may not create or recognize.”

Radnofsky calls the language in subsection B a “massive mistake” and accuses her opponent, Texas A-G Greg Abbott, of being “asleep at the switch” when the amendment was drafted. She writes:

“In our justice system, when language is clear, the courts are not permitted to go behind the clear language to consider intent. It doesn’t take an expensive law degree to understand what this clause means. … The clear language in B creates turmoil and breeds litigation. The solution lies in either a new constitutional amendment (our Constitution has hundreds of them) or massive judicial activism to take clear language and reword it.”

I for one will be watching with interest. It may mean that my (ex-?) wife and I will have to re-marry in a state where the institution is still legal (but it won’t be the same if we can’t have barbecue from Joe Cotten’s at the reception).