Thursday audio--Section A, Section B. Enjoy your extra day off.
We continue with Heightened/Fact Pleading.
• Think about possible justifications for subjecting fraud, mistake, and securities fraud (and only those) to heightened pleading and the counter-arguments for why those rationales do not explain or justify the rules.
• What is the argument for treating civil rights cases under FRCP 9(b) and why did SCOTUS reject them in Swierkiewicz? What does Swierkiewicz do with the argument that civil rights cases raise similar problems as fraud claims?
Then move to Future of Federal Pleading; read everything for Wednesday, as this will take us through most of the week. Read it for now and then keep reviewing each night.
• Focus on Twombly and Iqbal and how they changed (or did not change) the meaning of FRCP 8(a)(2). Does any part of Conley survive? What is the pleading standard under FRCP 8(a)(2) after Twombly and Iqbal?
• What motivates higher pleading? Can what the Court said about policy arguments in Swierkiewicz be reconciled with Twombly and Iqbal's concerns?
• What are "conclusory facts" and how are they handled on a 12(b)(6)?
• Analyze the complaints in VOA and Godin under the Twombly/Iqbal standard and determine whether they are sufficient. Consider what the basic elements of copyright, contract, defamation, and due process claims might be.
