http://www.publicsquare.net/bloggerheads From PublicSquare.net Sat, 03 Oct 2009 16:58:05 +0000 http://backend.userland.com/rss092 en I just wanted to add, that I agree with the proposal to allow district courts to control discovery and have early, issue-specific motions for summary judgment. I don't think plaintiffs should have to prove their case when they file.  But neither should they be empowered to drag out a meritless case. ... http://www.publicsquare.net/bloggerheads/2009/10/02/not-quite-gone-yet/ We want to be clear that the burden of discovery is borne by a wide array of defendants, not just antitrust defendants.  We focused our previous discussion on the burdens of antitrust cases because that is what Twombly was addressing and Professor Mulligan said his arguments bore on both Twombly ... http://www.publicsquare.net/bloggerheads/2009/10/02/plaintiffs-are-the-ones-who-should-be-proposing-an-amendment-to-rule-8/ As to my catch-22, Ms. Mitchell and Mr. Wallach would have plaintiffs proveall their facts prior to discovery.  But that is not our system.  One might well have defendants have all their facts proved for affirmative defenses before they list them in the answer. But we don't do that either. I ... http://www.publicsquare.net/bloggerheads/2009/10/02/proving-your-case/ Ms. Mitchell and Mr. Wallach first note that Twombly and Iqbal do not change the text of Rule 8(a)(2) but offer an interpretation of it.  I agree, of course.  I did not intend to imply that Twobly/Iqbal created a formal amendment to the text of the rule itself.  But, as ... http://www.publicsquare.net/bloggerheads/2009/10/02/interpreting-the-rule/ Professor Mulligan’s characterization of Iqbal as an “amendment” to  Rule 8 misses the mark.  Iqbal did not “amend” Rule 8 any more than Conley did.  Rather, Iqbal interpreted Rule 8.  And it  is unquestionably the role of the Supreme Court to definitively interpret the Federal Rules of Civil Procedure.  Rule ... http://www.publicsquare.net/bloggerheads/2009/10/02/iqbal-is-an-issue-of-interpretation-not-amendment/ In my view, Ms. Mitchell and Mr. Wallach’s retort that discovery in anti-trust is too expensive, merely proves my point.  As I noted in a previous post, the best evidence I have seen places the discovery costs of complex anti-trust suits at 33% of the amount at stake.  In $20 ... http://www.publicsquare.net/bloggerheads/2009/10/02/discovery-again/ In this post, I turn to an Iqbal specific critique.  In our system of justice, determining the veracity of allegations is reserved for the finder of fact.  While that role can be played by the judge (at the appropriate stage of the trial), it is typically played by the jury. ... http://www.publicsquare.net/bloggerheads/2009/10/02/iqbal-and-assumptions-of-truth/ Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) did not change the pleading standard. That was and is still governed by Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Under previous interpretations of this standard, such as that set ... http://www.publicsquare.net/bloggerheads/2009/10/02/iqbal-properly-requires-a-plaintiff-to-state-more-than-mere-legal-conclusion/ I turn now to a Twombly specific critique: if this change was needed, it should have come by amendment to the Federal Rules, not by Supreme Court interpretation of Rule 8(a)(2). In essence, Twombly  re-imposed the fact-intensive pleading system that was in place pre-1937.  This system is not without merit.  In ... http://www.publicsquare.net/bloggerheads/2009/10/02/the-error-of-a-one-size-fits-all-approach/ I turn now in this post to a critique of Twombly and Iqbal.  As I noted in my first post, these are actually two different standards.  Twombly assumes facts in a complaint to be true but bars implausible inferences.  Iqbal goes farther and does not assume certain alleged facts to ... http://www.publicsquare.net/bloggerheads/2009/10/02/twombly-iqbal-and-the-costs-of-discovery/