Wednesday audio--B; A. Essay # 1 has been posted--make sure you have the updated version. Due next Wednesday in class. Can someone from Section B please send me a photo of today's board?
We will have a few final words on Twiqbal. Then moved to Responing to a Complaint: Responsive Pleadings. Prep Failure of Proof Defenses for Wednesday and Affirmative Defenses for Thursday.
Download here. (Typo corrected in the caption--please use the updated version).
Due at the beginning of class next Wednesday, February 11.
In advance of Essay # 1 posting (and ## 2 and 3 coming next week), some further reminds about the importance of good, organized writing. I refer you to Good Writing and Talking Procedure and the sample essay and answer, which shows how you should approach, organize, and analyze problems. In addition, this doc reprints two Twitter threads by Joe Regalia on writing tips--the first on Justice Kagan's writing and the second a general, advanced tips.
A few additional points: If you are asked to argue or resolve a motion, your starting point should be your conclusion--grant or deny (or grant in part and deny in part). Your real analysis begins with the motion presented--what the motion seeks, the rule it comes from, what the rule it says, and the standard. That will take you into whatever other rules and analysis governs the answer to the motion. You can see this in the sample answer.
Friday audio: Section B, Part I; Section B, Part II. Section A, Part I; Section A, Part II.
Essay # 1 will post on Wednesday.
Complete The Future of Federal Pleading. With respect to the idea of "obvious alternative explanations," consider what the Court said in NRA v. Vullo:
The NRA sued a NY state official for a First Amendment violation, alleging that the official had threatened to investigate (or drop investigations against) insurance companies if they stopped providing services to the NRA. The official argued that an "obvious alternative explanation" for these actions was pursuing violations of state law and the ordinary give-and-take of negotiation between government and targets of an investigation. At pp. 16-17, the Court said this:
[T]his Court cannot simply credit Vullo’s assertion that “pursuing conceded violations of the law,” Brief for Respondent 29, is an “ ‘obvious alternative explanation’ ” for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns, id., at 37, 40, 42 (quoting Iqbal, 556 U. S., at 682). Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.
Thursday audio--B; A. Essay # 1 will be posted at 12:30 next Wednesday, February 4; due at the start of class on Wednesday, February 11.
Don't get too caught up in the floor/ceiling thing--it is more a way of thinking about how judges view the rules and how they should view the rules. If the complaint is larded up with a lot of extraneous pleading-as-press-release stuff, it is improper and subject to having the extra stuff struck under 12(f). It would be better if Judge Merryday recognized the problem as the pleading containing immaterial or scandalous matter for 12(f) purposes, rather than saying the complaint exceeds the short-and-plain statement 8(a)(2) allows. But in Trump we end up in the same place--the court struck the pleading (or the improper parts of it) under 12(f). The issue is what the basis should have been for striking. Again, the courts do a lot of stuff in the margins of the rules to make the system hum along, even if not textually warranted.
Corrected schedule for tomorrow's double classes:
Section B: 9:30-10:40; 20-minute break; 11-12:10
Section A: 1-2:10; 20-minute break; 2:30-3:40.
Prep all of Heightened Pleading; be ready to discuss the arguments for and against special treatment of fraud. Prep Present and Future; focus on Twombly and Iqbal and the new standard it created, including Questions 1-4. Don't worry about applying the standard to VOA and Godin; save that for next week. Be ready to discuss how the Court analyzed the pleadings in Twombly and Iqbal.
Wednesday audio--B; A. Essay # 1will post next Wednesday (Feb. 4) and due the following Wednesday (Feb. 11). Clarifiying schedule for Friday make-ups:
Section A: 9:30-10:40; 20-minute break; 11-12:10
Section B: 1-2:10; 20-minute break; 2:30-3:40.
We pick up with FRCP 12(f), so review Trump and Doe.
For tomorrow: Prep The Idea of Notice Pleading and Fact or Heightened Pleading (except Swierkiewicz). FRCP 9(b) (and § 78u-4(b)) represent our first non-trans-substantive rules. Consider the likely/possible rationales for treating fraud and mistake differently than other claims and whether those rationales justify special treatment.
For our double session Friday, we wil finish Fact or Heightened Pleading (including Swierkiewicz), then move to Present and Future of Federal Pleading,
Friday audio--A, B. Remember that we will do our first make-up session on Friday, January 30. Section B will meet 9:15-10:35, take a 25-minute break, then return for our regular time. Section will have our regular session (1-2:20), take a 40-minute break and reconvene from 3-4:20 (our regular time).
We continue with Motions. We start with the 12(b)(6) analysis in the Naruto motion. Prep FRCP 12(f), (g), and (h) (I left them off the syllabus). FRCP 12(g) and (h) guide you through the 7 12(b) defenses and the waiver puzzles in A v. X.
Expect to begin The Idea of Notice Pleading on Thursday.
