Thursday, December 3, 2009

A Personal Confession.

I have let the federal judiciary and the bar down and I regret those transgressions with all of my heart. I have not been true to my values and the behavior the court system deserves. I am not without faults and I am far short of perfect. I am dealing with my behavior and personal failings behind closed doors with my brethren. Those feelings should be shared by us alone.

Hold on, you thought....?

No no, that's not me or even Tiger -- that's my fantasy of the Supreme Court finally confessing their sins on Iqbal!

A boy can dream, can't he?

Maybe I'm jazzed up because Senator Leahy has that regrettably vague pleading standard in his sights:

Today, in sometimes tense exchanges, those senators went head-to-head with Gregory Garre, the former solicitor general who argued and won the case almost exactly a year ago.

Garre, now chair of the appellate practice at Latham & Watkins, testified about the case at a Dec. 2 hearing before the Senate Judiciary Committee. He said there has not been enough research to conclude that the Iqbal decision — and the related 2007 decision in Bell Atlantic Corp. v. Twombly — are unfairly restricting plaintiffs.

“We need to know more. We need to know whether meritorious cases are being dismissed. We need to know if these are cases that would have been dismissed before Twombly and Iqbal,” Garre said.

Sen. Patrick Leahy (D-Vt.), the committee’s chairman, said some of that research is impossible because courts are throwing out lawsuits that do not meet the higher pleading standard. “If the cases are dismissed, how are we going to know whether they were meritorious?” Leahy asked.

Garre replied that researchers could at least study whether a case might have been dismissed under the previous standard.

Sure, that'll be easy.

I also like the way the Senators get in Garre's grill over his "study":
And a third witness, University of Pennsylvania law professor Stephen Burbank, criticized Garre for citing research that Burbank considers inadequate: a 156-page memorandum (PDF) from a law clerk to the Judicial Conference’s civil rules committee.

“It is a summary of cases — appellate decisions and a non-random sample of district court cases. It’s not a study. Mr. Garre is confused,” Burbank said.

Garre responded by quoting the chairman of the civil rules committee, U.S. District Judge Mark Kravitz of Connecticut, who told The National Law Journal in September that he thinks judges are “taking a fairly nuanced view of Iqbal.”

Sen. Al Franken (D-Minn.) rebuked Garre at the end of the hearing, accusing him of exaggeration. “I don’t like being told something’s a study when it’s a summary…. Testimony before Congress should be accurate when you talk about something,” Franken said. Garre did not respond.

To be fair, I think our SD FL judges have in fact been fairly nuanced in the way they have approached the Iqbal standard on motions to dismiss.

The point is, though, we shouldn't have to hope and pray for such fairness and nuance on an individual, judge-by-judge basis -- the standard should be straightforward and uniform in its application (and while we're at it, you might as well have it conform to the federal rules).


Anonymous said...

too funny, you're a sick man SFL.

fake Chris Carver said...

Don't freak me out.

Zippy Zygote said...

I will say this about Iqbal: I like the term "facial plausibility." I can see bandying that about in myriad ways. ("In short, Plaintiff's claim for relief is facially implausible.") Plus, as Dave Barry would say, it's a great name for a band.

Godwhacker said...

Seriously considering moving to Vermont. Look, you get two of the only decent Senators (Leahy and Sanders), and then add in medical marijuana and gay marriage...

What does Florida have to compete with that? Mosquitoes, heat and Governor/Senator closet case...

No contest.

Not the Real swlip said...

I think that the best response to conservative pushes for tort reform is to be able to demonstrate that the judiciary is not afraid to dismiss meritless cases from the outset. Liberals should see the glass as half full on this, imo.

Anonymous said...

they already could and do

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