Cunningham v. Cornell University (decided last week) offers a different angle on the differences between claim elements and affirmative defenses and the pleading consequences of each.
The case shows a piece we did not discuss in class--the role of statutory interpretation in figuring out which is which. Where § 1 of a statute prohibits some conduct and § 2 provides exemptions from § 1, the best reading is that § 1 lays out the elements the plaintiff must plead and § 2 is an affirmative defense.
The case also discusses the role of FRCP 7(a)(7) and replies to answers as a mechanism to control weak cases. A court can order a plaintiff to file a Reply to an Answer without a request, allowing a 12(c) motion to resolve the affirmative defense early in the case.
