Monday audio. Essay I due at the beginning of class on Wednesday.
We pick with with Fact/Heightened Pleading, look at both FRCP 9(b) and the Private Securities Litigation Reform Act (PSLRA). What does each require? How are they different? Why fraud or securities fraud for differential treatment? Does the departure from transsubstantivity make sense? Why does 9(b) not apply to discrimination or civil rights claims, as explained in Swierkiewicz? What was the argument it should and why did the Court reject the argument?
We then turn to Present and Future of Federal Pleading, focusing in detail on Twombly and Iqbal and how they changed our understanding of 8(a)(2). What does "plausible" mean? What is the analysis the court now performs on a 12(b)(6) motion?