Nitin Shah

Nitin Shah is a law clerk to the Honorable Judith W. Rogers of the United States Court of Appeals for the District of Columbia Circuit, and he previously served as a law clerk to Judge Ellis. He attended Harvard College and the University of Virginia School of Law, where he served on the Virginia Law Review.

Co-Author of:

Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach, 114 Penn St. L. Rev. Penn Statim 64 (2010).

T.S. Ellis, III
T.S. Ellis, III is a Senior Judge on the United States District Court for the Eastern District of Virginia. Judge Ellis is a former member of the Judicial Conference Standing Committee on the Rules of Practice and Procedure and the Advisory Committee on the Rules of Appellate Procedure. Additionally, he has written and given speeches on an array of topics, including judicial transparency, and patent economics. He has degrees from Princeton University, Harvard Law School and Oxford.

Co-Author of:

Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach, 114 Penn St. L. Rev. Penn Statim 64 (2010).

Preferred Citation: Hon. T.S. Ellis, III and Nitin Shah, Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach, 114 Penn St. L. Rev. Penn Statim 64 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 64.pdf.

Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach
114 Penn St. L. Rev. Penn Statim 64. Published August 8, 2010. View as PDF.
By Hon. T.S. Ellis, III and Nitin Shah.

The Supreme Court’s opinions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have triggered a lively and heated debate over the federal threshold pleading standard. This debate is far from new. Distilled to its essence, the fundamental issue presented by this debate—the ease with which a claimant may nudge open the doors of a federal court—is the same issue that has been debated since well before the adoption of the Federal Rules of Civil Procedure. And we think it is safe to say that this issue will continue to be debated long after the dust settles on the current eruption.

As is typical of many policy debates, the debate over the merits and demerits of Iqbal and Twombly has been characterized by almost as much heat as light. Opponents of the decisions contend the decisions have the effect of closing federal courthouse doors to claimants with meritorious claims; they decry this assault on fair access to the courts. No less dramatic is proponents’ contention that the decisions are a necessary safeguard against an onslaught of frivolous claims cooked up by plaintiffs’ lawyers to pry open courthouse doors so they can use discovery as a weapon to extort settlements. Both sides’ contentions do little to advance the debate. No one disagrees with the contention that there should be fair access to the courts and that claimants with meritorious claims should not be denied this access. Similarly, no one denies that there should be proper safeguards to prevent claimants from using meritless claims merely to arm themselves with the weapons of discovery. These two contentions do not advance the debate for they assume the questions at issue, namely whether Iqbal and Twombly, contrary to their authors’ intent, have resulted in closing courthouse doors to meritorious claims or whether those opinions, consistent with their authors’ intent, have served to shut courthouse doors only to meritless claims asserted in the hope of coercing a settlement.

This Essay’s very modest objective is to move the debate toward a source of light (rather than heat) by focusing on the following questions:

1. What, if anything, has changed in the nature and volume of litigation to warrant the move from the pleading standard enunciated in Conley v. Gibson to the one prescribed by Iqbal and Twombly?

2. What, if any, are the effects of Iqbal and Twombly?

3. Should Iqbal and Twombly be modified or changed—and if so, how?

These questions are an easily recognizable application of the sensible principle that one needs to know where one has been and where one is now before one can decide in which direction to head in the future. And the limited purpose of this Essay is to suggest that we cannot answer the third question with any confidence unless we have a reasonably accurate understanding of the answer to the first question and unless we have valid empirical data pertinent to the second question.[keep reading]

By Michael Moffitt . 114 Penn St. L. Rev. Penn Statim 51.
Published July 26, 2010. View as PDF.

Preferred Citation: Michael Moffitt, Iqbal and Settlement, 114 Penn St. L. Rev. Penn Statim 51 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 51.pdf.

Iqbal and Settlement
By Michael Moffitt

The Supreme Court’s decision in Iqbal was good news for defendants. By increasing the scrutiny with which a plaintiff’s complaint is to be examined, the “plausibility” standard articulated by the Court makes motions to dismiss a more potent tool.

A nearly implausible amount of scholarly ink has already been spilled in an endeavor to answer descriptive, predictive, and normative questions about Iqbal. What does the plausibility standard really mean? How much of a change does this represent? Who will be most affected? And are those changes wonderful, awful, or something else? The sky either is or is not falling on some or all of us, according to Iqbal analysts.

Much of what has been written about Iqbal has been written from the perspective of litigation, and that is perfectly sensible. After all, Iqbal is a decision about Federal Rule of Civil Procedure 8, at its heart. Questions of access to the court and defenses like immunity are bread and butter Civil Procedure topics. Of course many of those who have commented on the case do so from a litigation perspective.

As Nancy Welsh suggests, however, the realities of modern litigation present another frame through which to assess Iqbal—that of settlement dynamics. My question is not whether Iqbal will have this or that effect on litigation. My question is whether Iqbal will create a change in disputants’ conversations about settlement. [keep reading]

Michael Moffitt
Associate Dean for Academic Affairs, University of Oregon School of Law.
Orlando J. and Marian H. Hollis Professor of Law
Associate Director, ADR Center

Before joining the Oregon law faculty in 2001, Michael Moffitt served as the clinical supervisor for the mediation program at Harvard Law School and taught negotiation at Harvard Law School and at the Ohio State University College of Law.  Following a federal judicial clerkship, he spent several years with Conflict Management Group, consulting on negotiation and dispute resolution projects around the world.  Moffitt has published a number of scholarly articles on mediation, negotiation, and civil procedure.  He co-edited The Handbook of Dispute Resolution, (Jossey-Bass, 2005), an award-winning compilation of 31 original chapters by leading scholars and practitioners in the field.   He also co-authored the innovative, student-focused book, Dispute Resolution: Examples & Explanations (Aspen 2008).  The Provost of the University of Oregon named Mr. Moffitt in the first group of recipients of a five-year award from the Oregon Fund for Faculty Excellence.  The Oregon law school faculty awarded Mr. Moffitt with the law school’s Orlando J. Hollis Faculty Teaching Award.  He is also the recipient of the University’s Ersted Award for Distinguished Teaching.

Author of:

Iqbal and Settlement, 114 Penn St. L. Rev. Penn Statim 51 (2010).

By Angelique EagleWoman. 114 Penn St. L. Rev. Penn Statim 41.
Published July 9, 2010. View as PDF.

Preferred Citation: Angelique EagleWoman, A Constitutional Crisis When the U.S. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards, 114 Penn St. L. Rev. Penn Statim 41 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 41.pdf.

A Constitutional Crisis When the U.S. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards
By Angelique EagleWoman (Wambdi A. WasteWin)

The United States Supreme Court is one of the three branches of federal government in the U.S. governmental system of checks and balances. The primary purpose of the Court is to resolve live controversies as final arbiter on the interpretation of the U.S. Constitution and the federal legislation implementing that foundational document. For scholars of federal Indian law, the U.S. Supreme Court has acted extra-constitutionally since it first heard a case involving tribal rights and has continued its “legislative” function in this area of the law ever since. Recently, the Court has stepped outside of the bounds of textual interpretation by creating a new level of civil pleading standards based on a “plausibility” requirement, rather than on the established Federal Rules of Civil Procedure notice pleading standard. While the judicial activism and unrestrained extra-textual interpretations in federal Indian law have been known to a core group in the field, the Court’s recent unmooring of civil pleading standards from the Federal Rules and settled precedent has come as a shock to many.

This essay will examine the U.S. Supreme Court’s judicial activism in relation to federal Indian law as a beginning point to discuss the recent introduction of the “plausibility” requirement in federal pleading sufficiency determinations. By examining the decisional law in the field of federal Indian law, the claimed power by the Court to redefine the legal status of Tribal Nations will become apparent. Next, the consequences of the U.S. Supreme Court’s unfettered ability to reshape law and limit access to the federal courts will be discussed. Finally, the essay will offer some conclusions on the constitutional crisis presented by the Court’s lack of judicial restraint in the legislative and political arenas. [keep reading]

Professor EagleWoman brings a diverse background that includes tribal economic development, legal code development, litigation, criminal law and scholarly interest in international indigenous law to her work at the University of Idaho Law. She received her L.L.M. in American Indian and Indigenous Studies in 2004 from the University of Tulsa College of Law.  Professor EagleWoman teaches in the areas of Native American Law, Native Natural Resources Law, Tribal Nation Economics & Law and Civil Procedure.

She has served several terms as a Board member of the National Native American Bar Association and believes in staying firmly tied to the Native legal field. She also maintains membership in the Bar Associations of the District of Columbia, Oklahoma, North Dakota and South Dakota. Highlights of her legal career include serving as General Counsel to the Sisseton-Wahpeton (Dakota) Oyate of the Lake Traverse Reservation, working as an associate attorney with Sonosky, Chambers, Sachse & Endreson in Washington, D.C. and serving as Tribal Public Defender for the Kaw Nation and the Ponca Nation, both of Oklahoma.

Angelique EagleWoman (Wambdi A. WasteWin) is a citizen of the Sisseton-Wahpeton Dakota Oyate of the Lake Traverse Reservation.

Professor EagleWoman was formerly a member of the law faculty at Hamline University School of Law in St. Paul, Minnesota and held a visitorship position at the University of Kansas in the KU School of Law and the Indigenous Nations Program. In the spring of 2008, she was selected as the recipient of the KU Center for Indigenous Nation’s Crystal Eagle Award for showing leadership and dedication toward helping community members or students within indigenous communities.

Author of:

A Constitutional Crisis When the U.S. Supreme Court Acts in a Legislative Manner?  An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards, 114 Penn St. L. Rev. Penn Statim 41 (2010).

By Timothy J. Witt. 114 Penn St. L. Rev. 1105

Much has been written regarding the economic effects of the federal estate tax, but relatively little has been published about state inheritance taxes and their economic consequences. Additionally, what has beenwritten has not been addressed primarily to a legal audience. The legal literature discussing the Pennsylvania inheritance tax, one of the eleven effective state inheritance or estate taxes found across the country, is no exception to this observation; beyond practice guides, few legal resources have discussed the tax, and virtually none have substantively and systematically examined its economic effects. [keep reading]

By Anna M. Sewell. 114 Penn St. L. Rev. 1067

The sinful nature of humankind is not a danger often discussed in American government textbooks. In fact, such reflections are typically reserved for the pulpit. Nonetheless, at Calvary Chapel Christian School (“CCCS”), high school students are exposed to this language in their government book, they encounter Bible verses in their physics book, and they use an American history textbook which claims “progressives had a faulty view of the nature of man.” As a routine administrative matter, the high school submitted the courses that use these texts to the University of California (“UC”) for acceptance as college preparatory courses under the University‟s pre-college curricula policy for undergraduate admissions, called the “a-g” subject requirements because each letter represents one of the seven required high school subjects. [keep reading]

By Tracy J. Ross. 114 Penn St. L. Rev. 1047

David Ben-Gurion once said, “The test of democracy is freedom of criticism.” Freedom of criticism has long been recognized as an essential, inalienable human right; a right that is thought to transcend political and geographical borders and applies regardless of culture, language, and national origin. In Ethiopia, as democracy begins to grow despite a history of corruption and totalitarianism, freedom of expression has proven to be an unsteady notion. In fact, while Ethiopia gains respect in other aspects of the international political scene, the government struggles to justify its draconian control over the media. [keep reading]