Wednesday audio--Section A, Section B.
We continue with The Idea of Notice Pleading.
• How does FRCP 11(b) enable notice pleading, in light of information asymmetry? What are the arguments for not requiring too much from the plaintiff in the initial pleading? How should information asymmetry affect the pleading standard?
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What does it mean to say a plaintiff "pleaded himself out of court?"
Consider how a court should resolve a 12(b)(6) in the following cases.
• Godin includes in her complaint allegations that she hit students.
• A, an African American non-attorney, applies for a position as an attorney in a law firm. The firm sends him a rejection letter reading, "We are not hiring you because you are not an attorney and because you are African American." A sues under an anti-discrimination law; the plaintiff must show race was a but-for cause for his non-hiring (that is, he must show that he would have been hired but-for the protected characteristic).
• How do the FRCP prevent pleading from becoming too loose and limited to simple notice?
Then move to Fact or Heightened Pleading.
• How does FRCP 9(b) differ from 8(a)(2)? How does § 78u-4 differ from FRCP 9(b)?
• These present our first non-transsubstantive rules. Why have a special rule for fraud and mistake (and securities fraud)--what are the rationales for special treatment and do those rationales justify the special rule?
• What is the argument for treating civil rights cases under FRCP 9(b) and why did SCOTUS reject them? What does the Court do with the argument that civil rights cases raise similar problems to fraud claims?
We will not reach Future of Federal Pleading until next Wednesday, but you will read that entire section into next week.
