Wednesday audio--Section B, Section A. Essay # 2 due at the beginning of class Friday.
Continue with Future of Federal Pleading.
• What are the policy arguments that drive the Court's decision in Twombly? How is that analysis consistent (or not) with Swierciewicz? Why do the policy arguments not justify the new standard?
• What is the new pleading standard and the new approach to deciding a 12(b)(6) motion after Twombly and Iqbal?
• Be ready to discuss how that standard applies to Twombly, Iqbal, VOA, and Godin.
• What does Johnson suggest about what a plaintiff must do in his complaint?
• What is the problem with the Court looking for and finding an "obvious alternative explanation" for the allegations in the complaint? In looking at this part of Twiqbal, consider the following:
NRA v. Vullo involved a First Amendment challenge by the NRA against Vullo (the head of the New York agency that regulates insurance companies); according to the complaint Vullo threatened insurance companies with regulatory action if the companies continued to do business with the NRA or promised to refrain from regulatory action if they ceased doing business with the NRA. The Court held that plaintiffs stated a claim for a violation of the First Amendment. The majority includes the following:
For the same reasons, this 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.
