Monday, January 30, 2017

For Wednesday--Section C

Monday audio. Essay I due at the beginning of class on Wednesday.

We continue with The Idea of Notice Pleading. What are the benefits to the plaintiff of relaxed notice pleading, without the demand for facts? What are the strategic drawbacks to pleading too much. How does a 12(e) motion work? What happens if a 12(e) is granted and how does that resemble 12(b)(6)?

We then turn to Fact/Heightened Pleading. Do not read Tellabs, only Swierkiewicz. Look at FRCP 9(b) and the Private Securities Litigation Reform Act (PSLRA), section (b). 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? This will carry us into next week.