Vice President Joe Biden, Rich Rodriguez and West Virginia

As a native West Virginian, I was heartbroken by the coal mining tragedy that occurred a few weeks ago. Yesterday, President Obama and Vice President Biden were gracious enough to attend the miners' memorial service at the Beckley-Raleigh Convention Center. I have provided the Vice President's speech below.

A funny tidbit: at around 2:26, he mentions the long and nasty divorce between the WVU football program and now-Michigan head coach Rich Rodriguez, and how the deceased miners--like many others in the state--hated the way that it happened. Over the past few days, many people have intimated that this comment may have been slightly inappropriate and insensitive, but I believe the Vice President was simply trying to convey the extent to which everyone in the state is family. It's difficult for outsiders to understand the bond that exists between West Virginians. This comment nicely demonstrates it.

Goldman Sachs: Evil or Genius?

In the midst of this struggling economy, you can always count on Goldman Sachs to make some money. From the New York Times:

[Email] messages appear to connect some of the dots at a crucial moment of Goldman history. They show that in 2007, as most other banks hemorrhaged money from plummeting mortgage holdings, Goldman prospered....In the third quarter of 2007, the investment bank reported publicly that it had made big profits on its negative bet on mortgages. By the end of 2007, the firm curtailed its disclosures about its mortgage trading results.

While Goldman vigorously denies claims about its significant profit, it will be interesting to see how the debate over the financial reform bill plays out in the Senate on Monday. Many Republicans are opposed to provisions such as the one requiring banks like Goldman to spin off their derivatives-trading operations into subsidiaries. As a result, they are threatening a filibuster, and the Democrats seem worried that it just might work.

What Do SEC Lawyers Do?

Look at porn apparently. From Yahoo News:

A senior attorney at the SEC's Washington headquarters spent up to eight hours a day looking at and downloading pornography. When he ran out of hard drive space, he burned the files to CDs or DVDs, which he kept in boxes around his office. He agreed to resign, an earlier watchdog report said.

As Rome burned, the taxpayers funded the SEC's porn habit; to the tune of over $200,000 a year.

New Rules on Derivative Trading?

From the New York Times:

The Senate Agriculture Committee on Wednesday approved legislation to tighten regulation of derivatives trading, with a single Republican, Senator Charles E. Grassley of Iowa, joining Democrats in supporting the measure. The vote was 13 to 8.

The bill to tighten regulation of derivatives is a crucial component of a larger effort to revamp regulation of the nation’s financial system. The Senate banking committee approved a broader bill last month on a party-line vote of 13 to 10, with Republicans unanimously opposed.

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Law School Transparency

We urge all of our readers to check out Lawschooltransparency.com. Their goal?

Law School Transparency’s goal is to provide open access to ABA-approved law school employment data and information. Many journalists, legal scholars, law school professors, graduates, and current students have discussed the need for a more comprehensive look at job prospects for recent law school graduates. When schools do go above the minimum standards set by the ABA or prominent third parties like U.S. News, they present the additional employment information in ways that often make it impossible to compare job prospects across law schools and determine the actual range of opportunities available at each school. Accordingly, our mission is to establish a new standard for employment reporting and to assist ABA-approved law schools in improving their reporting methods.

This website aims to become a clearinghouse for employment data from ABA-approved law schools. Additionally, we provide a closer look at how career services and admissions offices work together at ABA-approved law schools to develop relationships with employers and assist students in finding work. We believe that publishing employment lists will supplement, rather than replace, the many job placement summaries already provided by schools, publications, and legal scholars.

Hopefully law schools will embrace this idea. Many already hope for fundamental changes to the system as it is now constituted.

Dr. Brian Leiter on Why Obama's Choice is Janet Napolitano

Dr. Leiter makes a convincing case for why President Obama's choice to replace Justice Stevens will be Janet Napolitano, the current Secretary of Homeland Security. His reasons from Brian Leiter's Law School Reports:

1. She's a she.

2. She's a Protestant, replacing the last remaining Protestant on the court.

3. She's not yet another Yale/Harvard, "inside the Beltway" nominee, who has done nothing but be a judge or DC lawyer or law professor. She has political experience, as well as prosecutorial experience.

4. She's not an East Coast insider either--she's a "real" Westerner. Geographic diversity!

5. Like Kagan, but unlike Wood (and Garland), she could easily serve 25 or more years on the court given her current age.

6. She has the strong support of the two Republican Senators from Arizona, which will help neutralize Republican opposition.

7. She was confirmed without opposition to her current post--and that wasn't long ago.

8. She's a solid Democrat, but not obviously a liberal--there's little ammunition for the crazy right. She even put people to death as a prosectur in Arizona!

9. She's politically skilled, and, esp. with the support of the Arizona Senators, could likely win over other Republicans.

10. She doesn't have the baggage of Kagan or Wood. In the case of Wood, a long judicial record creates lots of fodder for the right-wing kooks. In the case of Kagan, she has limited experience (she is no John Roberts), a somewhat odd academic career (tenured at Chicago, but then unable to get hired back to the faculty after leaving the Clinton Administration; a visiting stint at Harvard led to an appointment, which was then followed by a successful Deanship, but she's had a relatively limited scholarly output); and even her nomination as Solicitor General produced more than 30 'no' votes in the Senate.

Like Dr. Leiter, I cannot imagine that President Obama would waste a substantial amount of political capital on a nominee whom Republicans will simply not accept. Secretary Napolitano seems to be a safe pick.

Insurance Companies and Fast Food

So large health and life insurance companies have substantial holdings in . . . fast food? CBS

Visualizing the U.S. News Rankings

Visualize Law provides a pretty cool graphical representation of the overall scores of the 2011 U.S. News Rankings. Click the small image above to see it.

Because Who Wants to Wait? USN Rankings Leaked @ TLS

Every year, as the tax man comes to take his share from his loyal citizens, law students from around the country eagerly anticipate the release of the latest U.S. News rankings. And every year, someone always claims to have the elusive list before it is officially released.

We may just have it, thanks to the diligent law students on the Top-law-schools message board.

Click the picture to the right and enjoy.

Disclaimer: This may not be the real deal - but it's always fun to speculate!

Linda Greenhouse on Justice Stevens

Can justices still learn on the job, or are they confined to strict party lines? Linda Greenhouse examines how Justice Stevens began his career with a somewhat conservative lean, even voting against government funding for abortions. Now, as liberals lament his retirement, his initial views on affirmative action and the death penalty seem to be disregarded.

Greenhouse ends her op-ed implying that we've exited the era in which a Supreme Court Justice can afford to change his mind. People want to know exactly how a potential justice will decide major issues, and I can't say I'm an exception. Maybe it's because the role of the Supreme Court is far too powerful to leave up to chance or indecision. Then again, maybe it's just a further reflection of our exceedingly binary political system.

The End of an Era: Justice Stevens Retires

As many had predicted, this term will be Justice Stevens's last on the Court.  The New York Times reports:

In a brief letter to President Obama, whom he addressed as “my dear Mr. President,” Justice Stevens said he was announcing his retirement now because he had “concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term” in October.

Justice Stevens's early announcement will hopefully quell expressed concerns that the Senate would not be able to confirm a replacement Justice in time. But who will that Justice be? We leave that question to the comments...

Steve Wynn Plans Casino in Philadelphia

It was not long after Pennsylvania legalized table games that UPenn alum, and Las Vegas tycoon, Steve Wynn expressed his desire to get a piece of the action. My question: why couldn't this have happened while I was still in law school? The Philadelphia Inquirer

Stay on the Court, Justice Stevens

Senator Specter urges Justice Stevens to stay on the Court for the remainder of this term because he feels that the Senate will not be able to confirm a replacement this year. Washington Post

Pearson-Iqbal: Responding to Comments

Thanks all for the helpful comments, and thanks especially to the DUI attorneys who seem so interested in the intersection between qualified immunity and pleading standard. (Joke.)

Before I wrap up discussing this article, I thought I’d respond to some comments I got throughout this series.

An early commenter posed the question of whether constitutional rights could be established by means other than § 1983 litigation, for example on habeas review or criminal appeals. The answer to this question is obviously yes — but only with regard to criminal law. And even then, many cases (for that matter, Saucier itself) arise out of underlying criminal cases. So at a minimum, this affects all civil rights claims that don’t arise out of underlying criminal cases, and those criminal cases that would otherwise be litigated by way of § 1983. (In subsequent posts, I discussed the race discrimination example. There are others: employment discrimination, free speech/press/religion claims, for example, and virtually all sorts of litigation that seeks injunctive relief, particularly structural injunctive relief. Probably none of these could be litigated if the only means of “clearly establishing” the law was by way of criminal appeals or habeas.)

The first commenter also raised Article III issues, namely, whether Saucier sequencing raises the problem of advisory opinions. Judge Leval on the Second Circuit has discussed this issue recently, essentially agreeing that there is a problem. Shortly before Pearson was decided, Sam Kamin wrote a persuasive article responding to the Article III concerns. I don't focus on those issues here; his article is a good one on that point.

Another, more "from-the-trenches" view, supporting Iqbal, came from a district court intern, who pointed out that Iqbal simply facilitates the dismissal of "claims that do not have merit". Let's just stipulate that frivolous lawsuits ("The president is spying on me and thus violating my constitutional rights") will be dismissed under any standard. Once those claims are bracketed, the point becomes question-begging. Recall that Rule 12(b)(6) motions are to be granted when the plaintiff fails to state a claim on which relief can be granted. Let’s say you experience some really invidious racial discrimination. If you come into court with a lawsuit that says “I suffered really invidious racial discrimination”, you will lose on a motion to dismiss even though your claim “has merit”. The work that Iqbal does is to tell you how much detail you need to plead so as not to get thrown out of the courthouse, not whether your claim, as such, is meritorious.

And, as another commenter pointed out: yes, a lot of these criticisms apply to Twombly as well. The real issue with Iqbal, though, is that there was some confusion pre-Iqbal as to the applicability of Twombly. And, because Iqbal arose in the civil rights context, it is reasonable to expect it to have its greatest impact there.

4:43 on 3/16 and Craig’s exchange is a good one as well. It really illustrates the problem of identifying “clearly established” law. 4:43 suggests that, in the school discrimination context I cited, perhaps race and sex discrimination are different, and the problem I identify is illusory. But as Craig points out, the very fact that we don’t really know makes the law “not clearly established”, so the claim could easily get kicked. The only way to avoid that is to plead more generally, which leads to the interaction (Iqbal) problem.

Finally, in response to a commenter — no, I don’t know of any courts so far that have caught on to this. But I hope they do soon!

In my next post, and my last post on this article, I’ll wrap up with a few thoughts on “procedural judicial activism”.

Blogging from the Supreme Court: Oral Argument Comedy

I was able to attend oral arguments in Barber v. Thomas, 09-5201 (2010) yesterday. The question presented in that case was whether the "'term of imprisonment' in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. 3624(b), unambiguously require[s] the computation of good time credits on the basis of the sentence imposed?"

But an exchange between a few of the Justices and the Solicitor General's counsel during oral arguments provided more entertainment than the Court's endeavors to solve the mathematical puzzles in the case. Law.com provided a detailed account of the incident:

The issue before the Court in Barber v. Thomas is the interpretation of a "term of imprisonment" under the federal good-time credit statute. The petitioning federal inmates argue that they should be eligible for the statutory 54 days of good-time credit for each year of their entire sentence as originally imposed. The position of the Bureau of Prisons is that the calculation of good-time credit is based only on time actually served by the prisoner. . . .

Assistant to the Solicitor General Jeffrey B. Wall, arguing on behalf of the government, told the justices that the petitioners' method of calculating a year of imprisonment, subtracting the 54 days of credit, wrongly creates a 311-day cycle for good-time credit eligibility. "But what the statute says is you make the determination at the end of the year. And we don't read "year" to be a 311-day period. We read it to be a 365-day period," Wall said.

Ok, got that? Enter Justices Breyer and Stevens to comb through the arguments and the math:

Justice Stephen Breyer expressed concern about awarding good-time credit for what he at one point in the argument termed "phantom time" -- time sentenced but not actually served. A prisoner sentenced to 10 years, Breyer said, "is not actually in prison for 10 years. He is going to be released sometime late in year 8. And so why should we add 54 days? I mean maybe it would be a nice thing because sentences are awfully long, but -- but why would anybody want to add 54 days in respect to a year that's never going to be served?"

Breyer offered a somewhat lengthy and arithmetic-heavy reading of how the statute might apply to a prison term of 10 years: "At the end of the first year you write the number 54 on a piece of paper if [the prisoner] has done well. Suppose he comes in on Jan. 1, OK? So Jan. 2, after the first year, you write ... the number 54. And you do that each year. And by the time you get to the year eight, what you have done is you have got 432 days." . . . Breyer continued: "So then you subtract the 430 days from 10 years, and what you get is you are 67 days short of nine years. So now you look at the last sentence, and what you do is you take 67 days, subtract that from 365, and you've got 298, and you simply prorate for those 298. And you subtract that, too, so he gets another 10 days or so, or 15 days credit, and that's it.

Justice John Paul Stevens seemed concerned about the policy implications of the government's position, telling Wall: "You say there are 195,000 sentences affected by this rule. I don't know which way that cuts. If there are 195,000 people spending ... significantly more time in jail than they should, that's kind of troublesome." . . . "Justice Stevens, I think what I would say is the bureau has been doing it the same way since 1987. Congress has amended this statute five times in the last 20 years. It has never moved to alter the bureau's methods," Wall answered. . . .

"Probably they didn't understand it because it's an awfully hard statute to understand," Stevens offered.

"Justice Stevens, with all respect, Justice Breyer got it in the first five minutes," said Wall, to laughter from the audience in the courtroom.

"Well, he's a lot smarter than I am," Stevens quipped.

Justice Antonin Scalia jumped in with a mock-incredulous tone that ratcheted up the laughter: "Even Justice Breyer has got it! Whoa!"

Yes, even Justice Breyer got it.

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On a related note, a few of my classmates and I got the opportunity to attend a small Q&A session with Justice Stevens after oral arguments. He talked with us about a few recent cases, his views on cameras in the Supreme Court and baseball. I'll be blogging more about this later.

The Next Major Product Liability Suit?

Drug product liability is an area of law that resembles a game of hot potato to decide who is at fault. The FDA, perhaps? Well of course not. You can't sue the FDA. That leaves you with the manufacturer. Hopefully, AstraZeneca isn't opening the door to its next major lawsuit.

10 Reasons to Fear the Health-Care Bill

The problems according to Richard Epstein. The Daily Beast

Pearson-Iqbal: A discussion about discretion

In my last post, I explored a few of the problems with the interaction between Pearson and Iqbal: that a civil rights plaintiff is caught between saying too much (and getting dismissed because of Pearson) or not saying enough (and getting dismissed because of Iqbal); that, as I explained with the example from DiStiso v. Wolcott, this interaction could not only deter plaintiffs from arguing constitutional theories but also from enforcing constitutional rights; and that changing the Rule 8(a)(2) standard has also implicitly modified the substantive inquiry at "Saucier step one", even though the Court did not frame it that way.

I also noted that the increased discretion that courts are given (to decide which step of the QI analysis to undertake first, and to use "common sense") makes it hard to predict how different courts will deal with identical facts. In this post, I want to expand on the problematic way these two cases handle courts' discretion.

Pearson, as discussed earlier, gives courts the discretion to decide which step of the QI analysis to address first. (By the way, in response to Craig's earlier comment -- in FN 131 of the paper, I cite several cases where courts skipped to step two of the QI analysis and note that as of that writing (six months ago), courts had done so "dozens" of times; I suspect the number is higher now.) But while the case law now gives courts wider discretion to dismiss civil rights claims, they have no corresponding discretion to preserve such claims. In the article, I give an example where , at summary judgment, it is a close question whether a reasonable jury might conclude that there was a violation of a (clearly established) right. If a district court dismisses the claim, it will likely be protected by Pearson. But if it decides to let the case go to trial, it will probably have committed reversible error: although trial courts have various inherent powers, qualified immunity is an immunity from suit, not just liability, so the court will probably be held to have exceeded its discretion.

Moreover, litigants will not know which of the two steps a court will address first. Therefore, they will probably argue both. And, in responding to the arguments raised, a court may well address both arguments, even after disposing of the case on one prong or another. (The Tenth Circuit recently did this in a case I cite.) This in turn results in unnecessary dicta, which is the problem with Saucier sequencing that Pearson ostensibly fixes.

Iqbal also disrupts long-standing law regarding lower courts' discretion. As the Second Circuit explained in its Iqbal decision (Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007)), a trial court, “not only may, but ‘must exercise its discretion in a way that protects the substance of the qualified immunity defense.’” Id. at 149. This discussion quoted Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998). Crawford-El explained that district courts have a wide array of tools at their disposal to carefully manage litigation and ensure that defendants -- and particularly government officials -- are not exposed to vexatious discovery and other litigation demands.

As the Supreme Court explained in Crawford-El, a trial court has the power, inter alia, to order a reply to the defendant’s answer per Rule 7 or require a more definite statement of the
plaintiff’s claims per Rule 12. “Thus, the [district] court may insist that the plaintiff put forward specific, nonconclusory factual allegations that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment.” Id. at 598. In Iqbal, the Court instructed that conclusory allegations must be disregarded altogether. Yet in Crawford-El, the Court specifically explained how trial judges were to use their discretion to more fully elaborate on such allegations in the course of testing a plaintiff's complaint. Iqbal makes no mention of Crawford-El, and therefore litigants must assume it is still good law, but there is no reasonable way to square the two decisions.

And this sort of carefully managed discovery process is nothing new. For years, courts have permitted plaintiffs to take limited jurisdictional discovery when there was a question as to whether personal jurisdiction existed in a particular forum. And consider this: Rule 9(b) imposes a heightened pleading requirement in certain cases. But the circuits were uniformly agreed, pre-Iqbal, that Rule 9(b)’s requirements were relaxed when the facts material to a fraud claim were in the defendant’s exclusive possession and could be obtained only through discovery. But it cannot now be the case that Rule 8's general allegations have to meet a higher standard than those that, per Rule 9, must be pled with particularity. Again, Iqbal makes no mention of this problem.

So Iqbal effectively rachets back district courts’ discretion, instructing them to dismiss a complaint outright when a complaint’s well-pleaded factual allegations are deemed implausible. But it also expands district courts’ discretion in another, important direction: it instructs courts to make this decision based on their “judicial experience and common sense." The problem, of course, is that this kind of a determination is so open-ended as to be almost unreviewable.

So this is the second major problem with Pearson-Iqbal: all of the discretion cuts one way. Pearson’s rule that sequencing is now voluntary increases a court’s discretion to dismiss civil
rights claims; Iqbal’s conclusion that discovery management is an inadequate tool decreases a court’s ability to preserve civil rights claims; Iqbal’s directive to rely on common sense increases a court’s ability to dismiss such claims.

Of course, it is possible to devise a rule that would have balanced the interests of civil rights plaintiffs and defendants. For example, the Supreme Court could have (and I submit should have) announced the following rule, consistent with Twombly and pre-Twombly authority: (1) civil rights claims require no heightened pleading standard; (2) if the allegations regarding a particular defendant’s actions are “conclusory,” a court is to determine whether the claims against him are consistent with liability and, if so, whether the facts necessary to support such a claim are likely to be in the defendant’s possession. If so, the court could order limited discovery or use other procedural tools — as described in Crawford-El — to permit the plaintiff an opportunity to determine if he can make out a claim against the defendant. If so, the case would proceed in the normal course; if not, the case would be dismissed. Again, such a formulation preserves the defendant’s interest in avoiding discovery intended only to harass, while permitting the district court to operate with a scalpel rather than a mallet (and a rather one-dimensional mallet at that, since a court’s only option in such a context is dismissal).

We're getting to the end. Because this series has gone on for a while, I'll take a break in my next post and respond to some reader comments. I'll wrap up with a discussion of procedural judicial activism and why we should worry about it.

Country Roads

I love my home state of West Virginia. I love the beautiful hills, the wonderful people and, of course, the Sweet 16-bound Moutaineers. But I cannot ignore a troubling aspect that continues to plague the state's reputation: its economy and general business environment. A recent study ranked the Mountain State dead last in lawsuit environment:

A study conducted by the U.S. Chamber Institute for Legal Reform rates West Virginia as having the nation’s worst lawsuit climate in the United States. . . . The Lawsuit Climate 2010: Ranking the States survey measures how a state’s legal climate affects businesses. Survey respondents were made up of general counsels and senior attorneys or executives in companies with annual revenues of at least $100 million. According to the report, West Virginia was rated last in each of ten elements used to determine a state’s overall position.

So apart from being a lawyer's paradise, businesses tend to eschew locating within the state. And the large companies that have set up shop seem to experience stagnate growth relative to their peers. Various reasons have been advanced to explain why this is the case, including a lack of competitive pay for executives, a relatively antiquated corporate governance structure and now, as noted, the need for tort reform. In any case, it is tough to know how to enact sweeping and meaningful change.

Weekend in DC

For a bit of news that has nothing to do with Pearson, Iqbal, or (at least directly) the law--

I'm in Washington, DC this weekend at the annual "Legislative Weekend", part of the YMCA DC Youth & Government Program. The program brings together high schoolers from across the District to discuss and debate issues that are important to them, to play the role of Youth Mayor, Council Members, etc., and "pass" bills into law. Some of the bills introduced during the high schoolers' program have gone on to become law in Washington, DC. The youth leaders from the program contribute to community and civic life as well; most recently, students from the program testified before the DC City Council.

I helped start this program eight years ago and it's grown well beyond its humble origins. I'm proud to be part of such an impressive program and encourage you to read more about it and support it if you are so inclined.