Two New [SSRN] Articles: Brown on "Reconstructing Pleading" and Rutledge on "Delegation and (Conflicts of Law)"
American lawyers and/or conflicts scholars may wish to read two new articles posted on SSRN.
Commentators have almost universally criticized the Supreme Court’s two recent cases on pleading, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. These cases require a court, in adjudicating a motion to dismiss, to determine if the plaintiff’s complaint contains “enough facts to state a claim to relief that is plausible on its face.” The Supreme Court has instructed courts to rely on “judicial experience and common sense” in making this determination. Many have feared that courts will use the newly articulated plausibility standard as a means to screen out disfavored plaintiffs, who are likely those that most need the benefit of discovery to prove their claims. Some have suggested that federal pleading practice is experiencing a “crisis.”
Within the context of a larger discussion that provides a three-step framework for courts to apply in deciding a motion to dismiss, this Article will argue that these criticisms are overstated. A proper reading of the cases makes the plausibility inquiry the final step in the analysis, and an inquiry of last resort. A motion to dismiss will not always even require the plausibility inquiry, and district courts have largely unreviewable discretion to help along a deficient claim. The proposed three-step process will also ensure that courts make the plausibility inquiry transparently and will facilitate appellate review.
In discussing the plausibility inquiry, I also provide a novel reading of Twombly and Iqbal in light of Rule 11’s requirement that a plaintiff certify that her “factual contentions . . . will likely have evidentiary support.” Twombly and Iqbal require a plaintiff to tell a court why she can make this certification. Cast in this light, the plausibility inquiry merely checks a plaintiff’s ability to appraise her own likelihood of success and again demonstrates that commentators have overstated the significance of the plausibility inquiry.
Peter B. Rutledge (University of Georgia Law School) discusses the impact of the U.S. Supreme Court decision in Medellin v. Texas on the delegation doctrine in “Delegation and Conflicts (of Law)” , George Mason Law Review, forthcoming. Here is the abstract:
The Supreme Court’s recent decision in Medellin rekindled a long-standing debate over delegation, which concerns the legal effect given to the decisions of foreign bodies (like the International Court of Justice) in the United States. Drawing on conflicts-of-law principles, this paper identifies and seeks to correct three distortions in the debate. First, it broadens the definition of delegation. Second, it advances a more nuanced system for classifying different types of delegations. Third, it wades into the normative debate over the desirability of various delegations. The closing section draws a parallel between the strategies employed in Medellin to those employed in the EC to expand the reach of European law in Member States.