Friday audio--Section A; Section B.
We continue with Motions. Review the three categories of 12(h) rules. Why the increasing non-waivability in each? Review the waiver puzzles, which should be easier now that we have gone through the waiver rules. Again, by giving them in advance, everyone should have prepared answers and be ready to volunteer. What is the purpose of FRCP 12(f) and how does it differ from 12(b)(6)?
Then move to How Much Detail? The Idea of Notice Pleading and An Alternative: Fact or Heightened Pleading. This gets us into what I said was the foundational question under the rules--how much detail is required in the complaint.
• How does Conley interpret FRCP 8(a)(2) and why? What is the purpose of the complaint and when is a complaint sufficient? Is Conley legal or factual sufficiency?
• What are the arguments for not requiring too much from the plaintiff in the initial pleading? What is "information asymmetry" and how does it affect the pleading standard?
• 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 rules prevent pleading from becoming too loose and limited to simple notice?
• How does FRCP 9(b) differ from 8(a)(2)? FRCP 9(b) presents our first non-transsubstantive rule. Why have a special rule for fraud and mistake--what are the rationales for special treatment and do those rationales justify the special rule?
