Overlawyered » pleading http://overlawyered.com Chronicling the high cost of our legal system Tue, 14 Feb 2012 11:28:52 +0000 http://wordpress.org/?v=2.8.4 en hourly 1 January 9 roundup http://overlawyered.com/2012/01/january-9-roundup-2/ http://overlawyered.com/2012/01/january-9-roundup-2/#comments Mon, 09 Jan 2012 05:12:45 +0000 Walter Olson http://overlawyered.com/?p=26676
  • Illinois now requires showing of ID, signing of log to buy drain cleaner. So long as you’re not trying to vote! [Consumerist via @amyalkon]
  • Tribute to no-longer-anonymous Ken White of Popehat and his work defending bloggers from legal threats [Scott Greenfield; earlier; Ken's defense in Maryland of blogger Aaron Worthing; new case of science blogger in Texas]
  • Politicos mobilize against risk that Wal-Mart will bring fresh produce choices to Harlem [Greg Beato] India frets about whether to allow chain stores, recapitulating a debate U.S. once went through [Tabarrok, MR]
  • Colorado legislators honored at a luncheon where I spoke [CCJL]
  • HHS launches initiative to audit health providers for compliance with HIPAA data privacy law, and many are unprepared [American Medical News, Dana Thrasher, Dom Nicastro/HealthLeaders Media]
  • New scholarship on effects of Twombly/Iqbal [Drug and Device Law series first, second, third, CL&P]
  • Congratulations to the outstanding Abnormal Use for winning the ABA’s “Blawg 100” vote for best torts blog; we feel pretty good about placing third without mounting a campaign. While exploring that site, don’t miss its stellar coverage of the tendentious documentary “Hot Coffee”.
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    ]]>     http://overlawyered.com/2012/01/january-9-roundup-2/feed/ 1     October 13 roundup http://overlawyered.com/2011/10/october-13-roundup-2/ http://overlawyered.com/2011/10/october-13-roundup-2/#comments Thu, 13 Oct 2011 05:36:49 +0000 Walter Olson http://overlawyered.com/?p=25043
  • Behind the antitrust assault on Google [Jerry Brito, Josh Wright, more]
  • Rapid rise of lawsuit lenders [WSJ] And a Searle Civil Justice Institute conference on third party financing of litigation;
  • More law firms muscle into class action against e-book publishers [PaidContent] Fifth Circuit questions cy pres [Trask] And a new edition of the Federalist Society’s Class Action Watch is out;
  • When the house painters announce they’re not leaving: “Britain plans to tighten anti-squatter laws” [NYT]
  • “Courts Call Out Copyright Trolls’ Coercive Business Model, Threaten Sanctions” [EFF] “Righthaven’s Copyright Trolling is a Bankrupt Idea” [Cit Media Law] More: Vegas Inc.
  • “Twombly is the Logical Extension of the Mathews v. Eldridge Test to Discovery” [Andrew Blair-Stanek via Volokh, Frank] “Four more reasons to love TwIqbal” [Beck] “O’Scannlain says 9th Circ has adopted ‘Iqbal lite’ pleading standard, ‘Same insufficient complaints, fewer dismissals!’” [@ScottKGraham on dissent in Starr v. County of Los Angeles, PDF]
  • Florida farms sell raw milk as (wink) “pet food” [Sun-Sentinel]
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    ]]>     http://overlawyered.com/2011/10/october-13-roundup-2/feed/ 1     “After TwIqbal, defendants don’t have to take scattershot pleading lying down” http://overlawyered.com/2011/07/after-twiqbal-defendants-don%e2%80%99t-have-to-take-scattershot-pleading-lying-down/ http://overlawyered.com/2011/07/after-twiqbal-defendants-don%e2%80%99t-have-to-take-scattershot-pleading-lying-down/#comments Tue, 12 Jul 2011 14:29:38 +0000 Walter Olson http://overlawyered.com/?p=23746 The Supreme Court’s admirable Twombly and Iqbal precedents give a federal district court the means to turn back a shotgun lawsuit against a horde of undifferentiated defendants [McFarland v. APP Pharmaceuticals LLC, slip op., 2011 WL 2413797 (W.D. Wash. June 13, 2011) via Beck, Drug and Device Law]. Quoting the court:

    [A]lleging that 93 defendants all manufactured, distributed, and/or sold all of the products that caused all of plaintiff’s injuries is not plausible. In addition, plaintiff’s allegations are internally inconsistent. The complaint alleges that “each” of the defendants manufactured the heparin that caused her injuries, but also alleges that each of the 93 defendants “separately manufactured, marketed, distributed, wholesaled, and/or sold” heparin. The inconsistencies between those allegations, which are not pled in the alternative, further highlight the implausibility of plaintiff’s allegations.

    James Beck writes, “Basically, the plaintiffs in McFarland didn’t want to do even the most basic spadework of identifying the correct defendants before bringing suit, so they threw in the kitchen sink in the hope that the defendants would end up having to spend the time and effort to figure things out.” After Twombly and Iqbal, that’s become a less effective legal tactic — one of many reasons to resist the Litigation Lobby drive to get Congress to overturn the two pleading decisions.

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    ]]>     http://overlawyered.com/2011/07/after-twiqbal-defendants-don%e2%80%99t-have-to-take-scattershot-pleading-lying-down/feed/ 2     April 19 roundup http://overlawyered.com/2011/04/april-19-roundup-2/ http://overlawyered.com/2011/04/april-19-roundup-2/#comments Tue, 19 Apr 2011 11:28:31 +0000 Walter Olson http://overlawyered.com/?p=22591
  • Environmental milestone? “Bolivia is set to pass the world’s first laws granting all nature equal rights to humans.” [JoNova via Coyote]
  • Add another to the list of judges who file suits over critical discussion of their rulings, in this case by the losing party, a newspaper [ABA Journal]
  • “Obama on presidential signing statements then … and now” [Bainbridge, Outside the Beltway]
  • “The never-ending stream of futile petitions suggests that habeas corpus is a wasteful nuisance.” [Joseph Hoffmann and Nancy King, NYT, via Lat, Frank] A different view: Scott Greenfield, The Briefcase.
  • Global warming suits “a misuse of the judiciary branch” [Laurence Tribe, Boston Globe via WLF]
  • Competing for the HuffPo reader? On link between chemical exposures and cancer, Salon.com perpetrates “utter nonsense” [Orac, Respectful Insolence]
  • Iqbal/Twombly: “Reports of pleading’s demise may have been exaggerated” [Wasserman, Prawfs]
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    ]]>     http://overlawyered.com/2011/04/april-19-roundup-2/feed/ 4     Federalist Society videos online http://overlawyered.com/2010/12/federalist-society-videos-online/ http://overlawyered.com/2010/12/federalist-society-videos-online/#comments Fri, 10 Dec 2010 14:55:43 +0000 Walter Olson http://overlawyered.com/?p=20563

    The Federalist Society has posted numerous videos from its recent National Lawyers’ Convention, including sessions on the aggressive regulatory stance of today’s Environmental Protection Agency, the constitutionality of Obamacare, anonymity and the First Amendment in media and campaign-regulation law, NYU’s Richard Epstein debating Yale’s Bill Eskridge on the court battle over California’s Prop 8, recusal and campaign rules for judges, Dodd-Frank, and the Christian Legal Society v. Martinez case on accreditation of student groups, among other topics. And civil procedure/Iqbal-Twombly buffs may be interested in a luncheon panel held just yesterday in D.C. (I was in the audience) in which four law professors (Don Elliott of Yale, Martin Redish and Ronald Allen of Northwestern, and Rick Esenberg of Marquette) outlined ideas for reforming the Federal Rules of Civil Procedure to reduce discovery costs and improve screening of cases in the earliest stages of filing.

    The video above is of the Society’s 10th annual Barbara Olson Memorial Lecture, in which Second Circuit Chief Judge Dennis Jacobs provocatively criticizes legal academia and other precincts of influential legal thinking for misunderstanding the role of the military and its relation to the law.

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    ]]>     http://overlawyered.com/2010/12/federalist-society-videos-online/feed/ 1     October 19 roundup http://overlawyered.com/2010/10/october-19-roundup-2/ http://overlawyered.com/2010/10/october-19-roundup-2/#comments Tue, 19 Oct 2010 12:17:54 +0000 Walter Olson http://overlawyered.com/?p=19742
  • Supreme Court case: “Family’s vaccine claim is not sustainable” [Washington Post editorial, earlier] More: John Calfee, The American.
  • GAO: HHS acted in “unusual” way when it muzzled health plans on ObamaCare costs [Cannon/Cato-at-Liberty, earlier]
  • “Trial Opens for Adoption Attorney Accused of Stealing From Clients” [NYLJ]
  • U.K.: A “human right” to have someone prosecuted? [Greenfield]
  • “Dodd-Frank, Bubble Laws, and Quack Corporate Governance” [Bainbridge]
  • Child overprotection: “Pack away the cotton wool” [Sydney Morning Herald editorial, scroll]
  • Here comes another SCOTUS case in the Twombly-Iqbal series? [WLF] Update: Apparently not [Ted at PoL] Why Iqbal and Twombly were rightly decided [Beck]
  • Don’t link, criticize, use our name, refer to us, view our source code… [three years ago on Overlawyered]
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    ]]>     http://overlawyered.com/2010/10/october-19-roundup-2/feed/ 0     Will Congress overturn Twombly/Iqbal? http://overlawyered.com/2010/09/will-congress-overturn-twomblyiqbal/ http://overlawyered.com/2010/09/will-congress-overturn-twomblyiqbal/#comments Fri, 24 Sep 2010 12:30:02 +0000 Walter Olson http://overlawyered.com/?p=19322 Yielding to the Litigation Lobby’s push to overturn the two landmark Supreme Court decisions “would be the real revolution in pleading,” notes Verizon’s John Thorne at Metropolitan Corporate Counsel, and would come at a time when the rulings are showing signs of real promise in weeding down some busy areas of speculative litigation.

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    ]]>     http://overlawyered.com/2010/09/will-congress-overturn-twomblyiqbal/feed/ 0     June 21 roundup http://overlawyered.com/2010/06/june-21-roundup-3/ http://overlawyered.com/2010/06/june-21-roundup-3/#comments Mon, 21 Jun 2010 14:04:20 +0000 Walter Olson http://overlawyered.com/?p=17876
  • After Mohawk Industries settlement, many employers could be sitting ducks for suits claiming that hiring illegal workers is RICO violation [Helman, Forbes, earlier]
  • Teen tries to help child lost in store, winds up facing felony rap of false imprisonment [Greenfield]
  • Federal magistrate in debt collection case: letter on law firm letterhead implies threat to sue [Legal Intelligencer]
  • On “professional” class action objectors [Ted at PoL]
  • Coal company claims ventilation system ordered by government regulators might have been a cause of deadly April mine explosion [WSJ]
  • Senate committee approves judicial nomination of John (”Jack”) McConnell, impresario of Rhode Island lead-paint litigation; William Jacobson explains critics’ charges regarding couching of legal fee as purported hospital donation [Legal Insurrection]
  • Hey, stop siphoning that oil slick, we haven’t checked your life jackets and extinguishers [GatewayPundit] Gulf oil rig registered for purposes of regulation in remote Pacific island chain [Legal Blog Watch] Richard Epstein on oil spill liability [WSJ] BP will never pay full price of accident [Popehat] Check back in 2031 to see how the litigation went [Alex Beam, Boston Globe]
  • American Constitution Society holds panel discussion on Iqbal and Twombly [BLT] “Is It Too Much to Ask That a Lawsuit Be ‘Plausible’?” [Richard Samp, WLF Legal Pulse]
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    ]]>     http://overlawyered.com/2010/06/june-21-roundup-3/feed/ 5     June 18 roundup http://overlawyered.com/2010/06/june-18-roundup-2/ http://overlawyered.com/2010/06/june-18-roundup-2/#comments Fri, 18 Jun 2010 05:27:35 +0000 Walter Olson http://overlawyered.com/?p=17812
  • “When the country went cold turkey”: Tyler Cowen reviews Last Call, Daniel Okrent’s history of Prohibition [Business Week]
  • Phrases never to put in email, e.g., “We Probably Shouldn’t Put This in Email” [Balasubramani, SpamNotes]
  • “My biggest wish was that I would get a cease and desist from the company that publishes Marmaduke” [Walker, Reason "Hit and Run"]
  • California proposal to jail parents for kids’ truancy [Valerie Strauss/WaPo via Alkon] Parents arrested on charges of forging doctor sick note to excuse third grader [Glenn Reynolds, Dan Riehl]
  • UK judge: NHS need not fund transsexual’s breast enlargement [Mail]
  • “Charitable Foundation Leader Alarmed by Government Intrusions into Philanthropy” [WLF Legal Pulse]
  • Missed earlier: “Stalking Victims’ Duty to Warn Employees, Lovers, Visitors, and Others?” [Volokh]
  • “Overturning Iqbal and Twombly Would Encourage Frivolous Litigation” [Darpana Sheth, Insider Online]
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    ]]>     http://overlawyered.com/2010/06/june-18-roundup-2/feed/ 5     June 11 roundup http://overlawyered.com/2010/06/june-11-roundup-2/ http://overlawyered.com/2010/06/june-11-roundup-2/#comments Fri, 11 Jun 2010 11:11:47 +0000 Walter Olson http://overlawyered.com/?p=17752
  • Automakers fight Bruce Braley/trial lawyer effort on Capitol Hill to overturn NHTSA preemption [Dow Jones, WSJ Law Blog, David Freddoso/Examiner, Carter Wood and more at PoL]
  • Twombly/Iqbal can curb sue-’em-all, sort-’em-out-later charges of civil conspiracy [Sachse/Drug & Device Law, earlier]
  • Claim: Obama, Kagan, Sotomayor typify “postradical” law school generation [David Fontana, Chronicle of Higher Ed via Wasserman/Prawfs (counter: "there are a lot of us liberal doctrinalists out here ...And students are learning that vision in law school"), Althouse ("Spare me! There are plenty of strongly liberal and lefty lawprofs and if you want theoretical ambition you can find it.")]
  • FTC report contemplates much wider federal intervention in media business [Jarvis/BuzzMachine, Tapscott/Examiner, Coyote, Steele/LEF, Stoll/Future of Capitalism, LA Times, ShopFloor, Jarvis/NY Post, Pethokoukis/Reuters, Suderman/Reason] Is scary McChesneyite “Free Press” making headway in administration? [Riggs, Daily Caller]
  • “Law and Society Boycott Resolution Gets Arizona Immigration Law Wrong” [Chin, Prawfs]
  • “Appeal of Crunch Berries Case Dismissed” [Lowering the Bar, earlier]
  • “Senior U.N. official” demanding end to U.S. use of drones against Al Qaeda in Afghanistan also happens to be NYU lawprof [NY Times, 16th/last paragraph of story]
  • Unintended consequences: 1932 cut in judges’ pensions changed Supreme Court history [Magliocca, ConcurOp]
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