Civ Pro pleading/erie question

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SCUlaw
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Civ Pro pleading/erie question

Postby SCUlaw » Sun Feb 27, 2011 8:16 pm

So my professor decided to get lazy and use a past test on our final last semester that some people in my class had seen so we got part of the test thrown out. So now we have a two question midterm. We have the choice of an erie question or a pleading question, both focused more on policy than actual answering problems (we are still going to have to work out an erie problem or a pleading one but talk about policy etc.) I was looking in the E&E's but I did not really see anything on pleading.

Which question would you guys rather handle, an erie or a general pleading question? Also, is there anywhere online that has a sample pleading question from past tests, I can't seem to find one and I'm having a hard time figuring out what a straight pleading question would look like. Thanks

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cahesu
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Re: Civ Pro pleading/erie question

Postby cahesu » Sun Feb 27, 2011 8:21 pm

I would take the pleading question and focus on preparing arguments about the effects of Twombly and Iqbal on the well-established Conley standard. I think this is the only sensible policy question to use regarding pleading, whereas an Erie question might present varying and unexpected challenges, arising from the muddled history of interpretation of the Erie doctrine.

On the other hand, if you want a challenge, a well-organized and carefully considered Erie answer might make your midterm stand out in a way that an essay on pleading could not.

SCUlaw
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Re: Civ Pro pleading/erie question

Postby SCUlaw » Sun Feb 27, 2011 8:29 pm

Yea thats what I'm thinking. I don't know how he can word a pleading question that would be as difficult to answer as an erie question, and the lack of material on just general pleading is getting me worried. Since we know what the two questions are would you suggest that I study one of them intensely or bide my time between both. I knew erie like the back of my hand during the final but as all good law students do I pushed that out of my mind once it was over haha.

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cahesu
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Re: Civ Pro pleading/erie question

Postby cahesu » Sun Feb 27, 2011 8:38 pm

That's a tough one... If it were me, I'd probably study exhaustively thoroughly for one. But this is probably colored by the fact that I have my Civ Pro grade back already haha. Good luck!

Kretzy
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Re: Civ Pro pleading/erie question

Postby Kretzy » Wed Mar 02, 2011 5:26 am

cahesu wrote:I would take the pleading question and focus on preparing arguments about the effects of Twombly and Iqbal on the well-established Conley standard. I think this is the only sensible policy question to use regarding pleading, whereas an Erie question might present varying and unexpected challenges, arising from the muddled history of interpretation of the Erie doctrine.

On the other hand, if you want a challenge, a well-organized and carefully considered Erie answer might make your midterm stand out in a way that an essay on pleading could not.


Study Erie via pleadings; compare Twiqbal via a state law that still uses the Conley standard, and work through the ways a post-Shady Grove Erie analysis would resolve the issue. Probably the easiest way to ensure you know how to analyze each possible question.

2/3 of my Civ Pro grade was this very question last term.

johndhi
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Re: Civ Pro pleading/erie question

Postby johndhi » Fri Mar 04, 2011 10:13 am

You can get pretty down and dirty with a pleading question, it's one of the most basic questions of civil procedure. Not sure what you guys covered, but in addition to the basic legal standards of Twombly, Iqbal and Conley, you can discuss 12(b)(6) cases like Dioguardi, Leatherman and Swierkiwicz and compare the interest in early dismissal with the interest in later dismissal by summary judgment. Talk about the goals of Charles Clark when he first wrote the FRCP versus what the modern courts were trying to do with Twombly and Iqbal. Talk about the basic need to balance a plaintiff's ability to bring suit with a defendant's right to act without limitless liability. Talk about nuisance lawsuits and, like the dude above you said, bring Erie in and say the anti forum shopping interests act to mitigate the need to heighten pleading standards because it takes away some of the skullduggery we're worried about. Speaking of heightened pleading standards, you might fold in the heightened standard for allegations of fraud versus the lowered standard for state of mind allegations.

Hehe I used your post to practice for my exam too :)




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