Spring 2010 Exam Prep Rant Thread Forum

[RVP11]

My three classes are Property, ConLaw, and Evidence.

[emoticons777]

Twombly and Iqbal: What the hell?! I have no idea how to even write an answer critiquing it or suggesting changes (which I am 90% positive will be on the exam). Dear Jesus, please help me.

[vanwinkle]

Twombly and Iqbal: What the hell?! I have no idea how to even write an answer critiquing it or suggesting changes (which I am 90% positive will be on the exam). Dear Jesus, please help me.

Wait, what? Critiquing it or suggesting changes? On our exam we had to apply it. Good luck with that shit.

[270910]

Re: Twombly and Iqbal - nobody knows what they mean. Not professors, not law students. Not district court judges applying them, not court of appeals judges reviewing them. Probably not the justices who wrote them.

You can string together a few defensible statements about the cases, but putting it to practice makes the whole mess collapse. The rule is basically "Sufficiently implausible claims will be dismissed prior to discovery, especially when discovery will be costly." Unfortunately, everyone would HATE that rule, so twombly and iqbal not only never say what is written in the prior sentence but often try to say the exact opposite. Still, if whatever you pretend twombly and iqbal mean has the end result of "sufficiently implausible claims will be dismissed prior to discovery, especially when discovery will be costly" then the obtuseness of the opinions will likely make it impossible to prove you wrong.

[98234872348]

Twombly and Iqbal: What the hell?! I have no idea how to even write an answer critiquing it or suggesting changes (which I am 90% positive will be on the exam). Dear Jesus, please help me.

My Civ Pro prof suggested that we not even really consider twombly because she believes that the standard of plausibility is unworkable and inconsistent with the goals of the FRCP and that it's eventually going to get overruled, or at least distinguished isolating it to it's facts (and obviously the facts of Iqbal). In addition, she said that applying it is impossible because it doesn't give a defined standard; how the hell are we supposed to know whether a judge will think a pleading is "plausible" drawing on judicial experience and common sense and because a case is merely "conceivable" is completely beyond my ability to perceive.

I'd just say that it's an absurd, utterly malleable standard that can't be reconciled with the policies underlying the federal rules and that Conley is far more consistent with the policy of ensuring that cases are decided on their merits rather than dismissed because of a judge's skepticism that a cause of action exists.

[Ipsa Dixit]

Metric fuckton. Truth.

BLL, sort of.... Basically think civpro FRCP with Congress smoking crack and letting Scotus clean up the mess.

Agreed.

Also, hearsay... it's like the RAP of Evidence. You can say the rule a million times, but WTF does it mean in application? It's one of those rules you just have to tear your hair out about until you have an "Aha!" moment about it

[solidsnake]

Twombly and Iqbal: What the hell?! I have no idea how to even write an answer critiquing it or suggesting changes (which I am 90% positive will be on the exam). Dear Jesus, please help me.

My Civ Pro prof suggested that we not even really consider twombly because she believes that the standard of plausibility is unworkable and inconsistent with the goals of the FRCP and that it's eventually going to get overruled, or at least distinguished isolating it to it's facts (and obviously the facts of Iqbal). In addition, she said that applying it is impossible because it doesn't give a defined standard; how the hell are we supposed to know whether a judge will think a pleading is "plausible" drawing on judicial experience and common sense and because a case is merely "conceivable" is completely beyond my ability to perceive.

I'd just say that it's an absurd, utterly malleable standard that can't be reconciled with the policies underlying the federal rules and that Conley is far more consistent with the policy of ensuring that cases are decided on their merits rather than dismissed because of a judge's skepticism that a cause of action exists.

Agreed. I think we'll see Twombly statutorily overruled within the next couple years, provided the dems keep control of congress. If not, the pro-defendant trend could continue. I also agree that Conley is more consistent with the truth-seeking function of litigation by letting cases get their foot in the door so that discovery can commence, where the parties can then get to the bottom of things themselves.

[solidsnake]

I know what you're saying, but unfortunately it's either let a lot of serious, serious shit get dismissed before plaintiff's had a chance to get in there and propound discovery or let a lot of frivolous shit get in there, waste everybody's time and money, and then get dismissed with prejudice.

Another thing to note is that Twombly doesn't apply to shitlaw negligence type claims, the type of claims that are usually the most frivolous, but rather to the more serious financial fraud, antitrust, etc. type claims where plaintiff is unlikely to be able to plead with sufficient particularity to satisfy the "plausibility" standard until he gets his hands on more docs. And the consequences of not enjoining defendant's operations could potentially have much larger economic ramifications for society and taxpayers -- enough, ideally, to offset the costs that increased litigation resulting from a return to the Conley standard would bring.

[270910]

Another thing to note is that Twombly doesn't apply to shitlaw negligence type claims

That's patently false. WTF?

[solidsnake]

Another thing to note is that Twombly doesn't apply to shitlaw negligence type claims

That's patently false. WTF?

You just won't give up, you little insect. Go read form 9 of the FRCP 2009-2010 and tell me if any change has been made to reflect Twombly. Twombly ain't gonna apply to the car accident type toilet law you're headed for, assuming it could even get to federal court to begin with.

[270910]

Another thing to note is that Twombly doesn't apply to shitlaw negligence type claims

That's patently false. WTF?

You just won't give up, you little insect. Go read form 9 of the FRCP 2009-2010 and tell me if any change has been made to reflect Twombly. Twombly ain't gonna apply to the car accident type toilet law you're headed for, assuming it could even get to federal court to begin with.

[98234872348]

Another thing to note is that Twombly doesn't apply to shitlaw negligence type claims

That's patently false. WTF?

You just won't give up, you little insect. Go read form 9 of the FRCP 2009-2010 and tell me if any change has been made to reflect Twombly. Twombly ain't gonna apply to the car accident type toilet law you're headed for, assuming it could even get to federal court to begin with.

Jesus.

I am pretty sure that implication of the Ashcroft case (I can't remember how to spell the other name) was that the Twombly standard applied to more types of cases besides just complex class action suits against large corporations. Whether or not that imputes to standard on your every day run of a mill negligence case is beyond me, but I guess on an exam you would write that it is uncertain where Twombly leaves us and how far reaching its standard is.

[prezidentv8]

Apparently, I know a good amount about Twombly/Iqbal and Conley, judging by what I was told about my Civpro exam from last semester. What exactly it is that I know, I could not tell you.


Reread answer: Ah yes...I talked a lot about effects of the change in the standard...sweet. Can't help with application much at this point though.

[prezidentv8]

Furthermore, does anyone want to tell me (1) when exactly you use the substantial factor test of actual causation in torts and (2) what exactly the standard means?

[solidsnake]

I limited it strictly to shitlaw. That means it doesn't need to be some massive class action either for Twombly to apply. These are words out of my civ pro prof's mouth.

[Lawl Shcool]

My civ pro prof had a hard on for Iqbal and Twombly because she was writing a paper on it. My strategy was to just do the normal Conley analysis then at the end say, "this wouldn't hold up under Iqbal because it is not plausible blah blah blah."

I think just mentioning it increased my grade by a significant margin.

[prezidentv8]

Furthermore, does anyone want to tell me (1) when exactly you use the substantial factor test of actual causation in torts and (2) what exactly the standard means?

This is really easy. You don't worry about substantial factor test for actual causation.

Now, regarding proximate causation, basically jurisdictional/Prof preference. And the restatement 2d adopts substantial factor, so you may just be able to check that.

Odd...maybe my prof has a different view, but there are in the same place in our materials, and definitely before proximate cause...the examples given tend to be if there are multiple independent causes of harm, where "but for" would result in no one being held responsible.

[solidsnake]

Haha, since that test is pro-plaintiff in that it helps plaintiff show cause-in-fact where he would otherwise fail the but-for test, I think my prof just categorically ignored it out of principle.

[prezidentv8]

Haha, since that test is pro-plaintiff in that it helps plaintiff show cause-in-fact where he would otherwise fail the but-for test, I think my prof just categorically ignored it out of principle.

Yeah it's actually interesting now that I'm diggin into the hornbook...apparently it's categorized sort of as a weird blend of actual/proximate causes. But I'm starting to think that it's only really applicable in that situation I mentioned based on what I'm seeing.

Edit: yup, seems to be applied in a limited way, the hornbook mentions three specifically

[Esc]

Haha, since that test is pro-plaintiff in that it helps plaintiff show cause-in-fact where he would otherwise fail the but-for test, I think my prof just categorically ignored it out of principle.

Yeah it's actually interesting now that I'm diggin into the hornbook...apparently it's categorized sort of as a weird blend of actual/proximate causes. But I'm starting to think that it's only really applicable in that situation I mentioned based on what I'm seeing.

Edit: yup, seems to be applied in a limited way, the hornbook mentions three specifically

From what I (understand?) it seems to only be applicable to certain med mal cases, where multiple defendants shared fault, and to asbestos litigation. But notably it was shot down hard in the Agent Orange case, which prevented it from becoming the standard for toxic tort causation.

[prezidentv8]

Haha, since that test is pro-plaintiff in that it helps plaintiff show cause-in-fact where he would otherwise fail the but-for test, I think my prof just categorically ignored it out of principle.

Yeah it's actually interesting now that I'm diggin into the hornbook...apparently it's categorized sort of as a weird blend of actual/proximate causes. But I'm starting to think that it's only really applicable in that situation I mentioned based on what I'm seeing.

Edit: yup, seems to be applied in a limited way, the hornbook mentions three specifically

From what I (understand?) it seems to only be applicable to certain med mal cases, where multiple defendants shared fault, and to asbestos litigation. But notably it was shot down hard in the Agent Orange case, which prevented it from becoming the standard for toxic tort causation.

Okay so just read in the tort hornbook that it's basically garbage when applied to proximate cause but actually useful on actual cause. So...separate applications of the same thing, one useful and one not?

[270910]

I limited it strictly to shitlaw. That means it doesn't need to be some massive class action either for Twombly to apply. These are words out of my civ pro prof's mouth.

+1. In Iqbal, the Court expressly states this is the pleading standard for all of Rule 8. As a disclaimer, the Court also said that it wasn't overruling Conley, just interpreting it more clearly.

Also, I might be wrong on this, but my understanding is that Twombly did not explicitly overrule Conley. In Twombly, the majority opinion tries to make it seem like they're not really departing from Conley, when in reality they are.

We could go on, but there is no need to pile up further citations to show that Conley’s “no set of facts” language has been questioned, criticized, and explained away long enough. [...] after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard

[tikitavi]

Furthermore, does anyone want to tell me (1) when exactly you use the substantial factor test of actual causation in torts and (2) what exactly the standard means?

When you have two tortfeasors and neither of them are 'but for' causes. The 'two fires problem' is the paradigm case. You have two fires(each one started by a different tortfeasor) near your property, each fire would independently burn your house down, but then they combine into one large fire and this fire burns you house down.

Neither fire is a 'but for' cause because if you take away one fire the other fire would have still burned the house down. So requiring 'but for' causation would cause plaintiff to not be able to get any recovery. So in a case like this you use the 'substantial factor' test.

[prezidentv8]

Nice document.

[mac.empress]

I was super happy.

I thought I had time to study.

I don't.