Nov 15, 2010 Joseph SeinerWork Law
Suja A. Thomas,
The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis & Clark Law Review 15 (2010), at
SSRN.In Bell Atlantic v. Twombly, 550 U.S. 544 (2007), the Supreme Court adopted a plausibility test for pleading federal claims, replacing the more liberal standard from Conley v. Gibson, 355 U.S. 41 (1957), which had permitted a case to proceed “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.” Id. at 45-46. While Twombly was an antitrust case, the Supreme Court made clear in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), that the newly announced plausibility standard would apply to all civil cases. In her recent article, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, Professor Suja A. Thomas demonstrates how these recent Supreme Court decisions have transformed the motion to dismiss into the motion for summary judgment. This piece builds off of the strong foundation Professor Thomas has already established in this area, including her articles Why the Motion to Dismiss is Now Unconstitutional, 92 Minn. L. Rev. 1851 (2008), and Why Summary Judgment is Unconstitutional, 93 Va. L. Rev. 139 (2007). The piece highlights the difficulties employment discrimination plaintiffs may now face when opposing a motion to dismiss.
In this article, Professor Thomas examines how, after Twombly and Iqbal, the standards for the motion to dismiss and the motion for summary judgment are now nearly identical. In particular, both standards require a court to look to whether a claim is plausible. After Iqbal, the plausibility test now clearly applies to motions to dismiss, and Professor Thomas demonstrates how the plausibility standard has similarly been applied in the summary judgment context. In addition, for both the motion to dismiss and the motion for summary judgment, “courts assess both the inferences favoring the moving party and the inferences favoring the nonmoving party.” (P. 30.) Finally, according to Professor Thomas, when considering either type of motion, the courts are actively using their own opinions and views of the evidence to decide whether a particular claim should proceed. Continue reading "The Motion to Dismiss for Workplace Plaintiffs after Iqbal and Twombly"
Nov 12, 2010 Daria RoithmayrJurisprudence
If there is a single issue that ought to dominate all others in scholarship about race, it should be the hyperincarceration of black men. And if I had to recommend one piece of scholarship on this issue to read, it would be a recently published essay by Loic Wacquant. Wacquant contributed this essay (which has no title) to a slim and elegant volume edited by Glenn Loury. Wacquant’s short contribution is more than just provocative; it is a bit mind blowing, for reasons that I will explain. The essay draws on a decade’s worth of work by Wacquant, synthesized here into seven short pages. I am happy to note that, owing to Loury’s visibility, both the issue and Wacquant’s contribution now are finally likely to get the attention they deserve.
Wacquant sets out his argument in four steps. First, Wacquant argues that hyperincarceration targets a very specific population by race and class: poor black men in the crumbling ghetto. Several commentators have suggested that the spike in incarceration rates can be attributed to a general increase in crime and punishment. Using available statistics, Wacquant demonstrates that we are imprisoning more people even controlling for the crime rate; the number of convictions per 10,000 “index crimes” has quintupled, from 21 in 1975 to 106 in 1999. Moreover, these new convictions are of black men: the predominant race of prisoners has flipped, from 70% white just after World War II to the current rate of 70% non-white. Continue reading "The Ghetto and the Prison"
Nov 10, 2010 Edward RubinConstitutional Law
In a field that crackles with normativity, David Strauss has written an article that provides a genuinely illuminating description of the rationale that underlies many recent Supreme Court decisions. The Court, he argues, often follows a principle that he describes as “modernizing.” This consists of two basic elements. The first is that the Court will apply a sort of strict scrutiny to any statute it regards as “out of step with current popular sentiment” and will invalidate the statute if there is any possible doctrinal ground for doing so. The second element is that the Court will reconsider its decision if subsequent events show that its conclusion was mistaken and that the statute actually had popular support. Modernization is rarely invoked as the sole basis for a decision, according to Strauss, but it is not a subconscious tropism or a clandestine connivance either. Rather, it functions as a supporting principle that appears regularly in the opinion’s rationale.
Strauss supports his observation with an extensive and thoughtful survey of recent Court decisions. Exhibit A for the first element of modernization are the Court’s Eighth Amendment decisions, specifically Roper v. Simmons (forbidding execution of a minor), Atkins v. Virginia (forbidding execution of a mentally retarded person), and Kennedy v. Louisiana (forbidding execution for the non-lethal rape of a child). In all these cases, the Court noted that the death penalty was an archaic provision that conflicted with the general tenor of popular opinion. Exhibit A for the second element of modernization are the 1972 decision in Furman v. Georgia, where the Court declared capital punishment to be cruel and unusual, and the 1976 retrenchments, including Gregg v. Georgia, where the Court upheld the death penalty after 35 states reenacted death penalty statutes. Other cases that reveal the Court’s modernizing inclinations include Virginia v. U.S., which struck down VMI’s refusal to admit women, Griswold v. Connecticut, and Lawrence v. Texas. Strauss includes some other cases that push his point a bit too far, such as Moore v. City of East Cleveland, but, generally speaking, he makes his case in a convincing manner. Continue reading "THE GOOD, THE BAD AND (PERHAPS) THE UGLY OF A POPULIST COURT"
Nov 8, 2010 Alyssa DiRussoTrusts & Estates
Kristine S. Knaplund,
Charity for the Death Tax? The Impact of Legislation on Charitable Bequests, 45
Gonz. L. Rev. 713 (2010), available at
SSRN.How sturdy is the charitable impulse in the face of federal and state regulation, and would the removal of an estate tax benefit for charitable bequests smother it? Professor Kristine S. Knaplund of Pepperdine explores this conundrum from a creative and unique perspective in her new article.
The article is a story of American legal history and the persistent charitable drive. Professor Knaplund points out that charitable bequests have taken their legal knocks before, and still emerged strong. Her article guides us through a variety of legislative acts, both state and federal, that altered restrictions or incentives to make charitable gifts. Throughout the article, Professor Knaplund skillfully juxtaposes the federal regimes (largely tax acts) with contemporaneous state law developments. Continue reading "The Effect of State and Federal Regulation on Charitable Giving: A Historical Analysis"
Nov 5, 2010 Eric PanCorporate Law
Poor Delaware. The small state (45th in population and 49th in geographic size) is the dominant corporate law jurisdiction in the United States, and for decades the academic community has been fascinated with the reasons why. Initially, scholars portrayed Delaware as the savvy champion of a fierce competition for corporate charters. The quality of its courts, the richness of its case law, and the responsiveness of its legislature made Delaware the most attractive place to incorporate for US public companies. When Marcel Kahan and Ehud Kamar’s wrote The Myth of State Competition in Corporate Law, 55 Stan. L. Rev. 679 (2002), the academic community’s view of Delaware had changed: Delaware was not facing direct competition from other states, but rather winning by default.
More so than any other corporate law scholar, Mark Roe has tried to explain why Delaware still has much to fear. Roe is well known for his argument, articulated in Delaware’s Politics, 118 Harv. L. Rev. 2491 (2005), that Delaware faces a competitive threat from the possibility of corporate governance regulation by the federal government. Roe’s analysis, originally written in the wake of the Sarbanes-Oxley Act of 2002, has proven prescient with the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act last July, which introduced a host of significant corporate governance reforms for US public companies, including say-on-pay and proxy access. Continue reading "Embattled Delaware"
Nov 3, 2010 Christine ParkerLegal Profession
John Flood,
The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation, 59
Current Sociology 2011,
available at SSRN.
Lawyers and legal academics, especially in the US, have been very interested in the radical changes taking place to the regulation of the legal profession in England and Wales. These reforms will allow alternative “business structures” for law firms and put in place an independent “super-regulator” overseeing the legal profession. Similar reforms have already been instituted in Australia, generating their own share of interest. Much of the debate has focused on the possibilities of law firms incorporating and publicly listing their shares. The most strident proponents of the new regulation welcome it as important economic innovation, while critics herald these developments as the collapse of the profession as we know it.
John Flood’s paper, “The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation”, forthcoming in Current Sociology and currently available on SSRN, provides a though-provoking analysis of how large law firms “are undermining, modifying, escaping and ultimately reconstructing professional regulation regimes.” Flood’s paper was part of an excellent panel at the International Legal Ethics Conference in Stanford in July 2010, which included papers by Judith Maute and Andy Boon that also provided nuanced and sociologically insightful perspectives on the reforms overcoming the English legal profession. Continue reading "Exposing the Regulatory Reform Agenda of Large Law Firms"
Nov 1, 2010 Anne Marie LofasoWork Law
Ellen Dannin,
Hoffman Plastics as Labor Law—Equality at Last for Immigrant Workers?, 44
U.S.F. L. Rev. 393 (2009), available at
SSRN.
In Marbury v. Madison, the Supreme Court early on affirmed as “indisputable” the rule “that where there is a legal right, there is also a legal remedy” and “that every right, when withheld, must have a remedy, and every injury its proper redress.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 William Blackstone, Commentaries *23, *109).
But while black letter law so instructs, employee status under the National Labor Relations Act does not always guarantee backpay to victims of unfair labor practices—or so explains Ellen Dannin in her well-documented review of the by now infamous labor-immigration case, Hoffman Plastics Compounds, Inc. v. N.LR.B., 535 U.S. 137 (2002). Her article, which was part of the University of San Francisco’s symposium issue—The Evolving Definition of the Immigrant Worker: The Intersection Between Employment, Labor, and Human Rights Law—meticulously dissects the language of the Supreme Court’s opinion and the oral argument to show that Hoffman Plastics’ holding—that employers are not liable in backpay for violating the labor law rights of undocumented workers—is not an anomaly. Instead, it fits neatly into an historical trend of judicial amendments to the NLRA. Continue reading "Judicial Amendments Treating Citizen and Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies"
Oct 29, 2010 Anne Joseph O'ConnellAdministrative Law
There is considerable overlap between administrative law and constitutional law. The appointment of particular agency leaders without Senate confirmation, ex parte communication between an agency and interested persons in a rulemaking process, and the type and timing of a hearing used in terminating a government benefit, for example, can raise constitutional issues. These topics generally receive some attention, at least in the academic literature and at times in the courts.
Sophia Lee’s exceptional article, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, turns our attention from these more conventional explorations of the overlap to “regulatory agencies’ interpretation and implementation of constitutional law,” what Lee terms “administrative constitutionalism.” The article compares the contrasting responses of the Federal Communications Commission and the Federal Power Commission to pressure to use the state action doctrine to enact and enforce employment policies aimed at furthering equal employment by race, sex, and ethnicity, mainly in the 1960s and 1970s. The FCC did implement equal employment rules, largely independent of direct presidential or congressional influence, while the FPC did not. Continue reading "Regulating Constitutional Law"
Oct 27, 2010 Adrian VermeuleClassics
Herbert W. Horwill, The Usages of the American Constitution (1925).
A great deal of recent work distinguishes the small-c constitution from the Constitution. The latter is the written document, whereas the former is an amorphous and ever-changing body of constitutional norms, customs, and traditions – “constitutional conventions,” to use the umbrella term that Commonwealth lawyers have developed to talk about unwritten constitutions. The recent work on small-c constitutionalism, however, has almost invariably neglected a classic and illuminating book on constitutional conventions in the United States: Horwill’s Usages of the American Constitution. A “neglected classic” sounds like an oxymoron, but Horwill’s book is proof that such a thing can exist.
Horwill was an English writer who lived and traveled in America and reported upon its natives and their curious customs for an audience in the Old World; his book thus falls into a genre defined by Tocqueville and Bryce. Because the past is another country, many of the constitutional usages that Horwill discussed in 1925 seem exotic today. In the 19th century, there was apparently a constitutional convention that the President should not travel outside the territory of the United States during his term of office. The convention was sufficiently powerful, Horwill relates, that presidents would meet their Mexican counterparts half-way across a bridge over the Rio Grande. Woodrow Wilson shattered the convention with his extended stay in Paris after the First World War, and it has now vanished from view altogether. Continue reading "The Small-c constitution, Circa 1925"
Oct 27, 2010 A Michael FroomkinClassicsJotwell
Jotwell is an online journal devoted to reviews of the great recent writing related to the law that top scholars in the field believe deserves a wide readership.
The Classics section, however, is a little different: it provides a home for the occasional review of classic works of law, especially those unjustly neglected. (To qualify as a ‘classic’ for this purpose the work must have been published at least 50 years before the review.) Unlike Jotwell’s other sections, the Classics Section doesn’t have a board of editors, nor will we attempt a regular publication schedule. We’ll publish something appropriate only if and when someone is moved to write it.
