SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Lawyers: Why We Are Different and Why We Are the Same: Creating Structural Incentives in Large Law Firms to Promote Ethical Behavior - In-House Ethics Counsel, Bill Padding, and In-House Ethics Training
No full textWhile Effusive, Conclusory is Still Quite Elusive: The Story of a Word, Iqbal, and a Perplexing Lexical Inquiry of Supreme Importance
No full textThe meaning of the word “conclusory” seems really, quite elusory. Conclusory is a widespread, common, and effusive word in the modern legal lexicon. Yet you would not necessarily know that by looking through many dictionaries. “Conclusory” has been a late comer to the pages of most dictionaries. Even today, not all dictionaries include the word “conclusory”, those that do have only recently adopted it, and the small number of available dictionary definitions seem to struggle to capture the word’s usage in the legal world. Yet the word “conclusory” has taken center stage in the procedural plays of civil litigation with the help of the 2009 U.S. Supreme Court decision in Ashcroft v. Iqbal. This Article attempts to explore this definitional perplexity. Available dictionary definitions at best give us a general idea of what “conclusory” means but can hardly resolve the perplexity of how the word is used to filter the acceptable from the unacceptable pleadings. The “conclusory” standard in Iqbal might turn out to be nothing more than a “I know it when I see it” standard. There is a sense in Iqbal that conclusory statements are like procedural pornography so profane and lacking in quality that they are not entitled to protection of otherwise liberal pleading standards. Part I documents the usage of the word “conclusory” and the upward trend in its use throughout the past century. Part II summarizes the use of the word “conclusory” in the pleadings standards established in Twombly and Iqbal. Part III then surveys the literature on Iqbal. Part IV concludes that the dictionary definitions are of little utility in understanding the meaning of “conclusory” in Iqbal and do not provide clear guidance to litigants or the courts in applying Iqbal’s pleadings standards in that regard. Such a conclusion should not be surprising, I contend, in light of the inherent limitations in dictionaries themselves. Part V presents two primary conclusions: (1) the Iqbal “conclusory” prong has a low degree of predictability in its application and is largely subject to judicial interpretation of pleadings on a highly individualized, judge-specific, and case-by-case basis; and (2) one of the only methods available to operate within this high degree of uncertainty is to base one’s understanding of the Iqbal test on the historical usages of the word within past court decisions. Appendix E provides a reference list of U.S. Supreme Court cases that have used the term “conclusory” with minor annotation to indicate some context of the usage. This Article will attempt to tell the history and story of one word – “conclusory”. At the end, the reader will still not know what exactly that one word means. But therein lies the point of the exercise upon which this Article embarks. It is a seat on the observation deck to the evolutionary spread of a word into our lexicon, a revelation about the fallibility of dictionaries, a recognition of the sometimes indeterminate use of language, a caution that a word’s meaning is seldom revealed in isolation, a lesson on the importance of contextual analysis, a debate about the utility of flexibility in standards, and a charge in the face of unavoidable confusion to make the best use of skill and analogy to operate within the constraints of a new judicially-demanded ante for entering the game of civil litigation
Clip from Webcast of Hearing on FY 2012 State Department Budget, U.S. Senate Committee on Appropriations
No full textAn exchange (at ~1:16) between Senator Ron Johnson and Secretary of State Hillary Clinton in which Senator Johnson directly and specifically questions Secretary Clinton on Donald J. Kochan, Op-Ed., Reading Adam Smith in Arabic, WALL ST. J., Feb. 17, 2011, at A17
Learning Research and Legal Education: A Brief Overview and Selected Bibliographical Survey
No full textAt its core, education is about learning. Every educator, legal or otherwise, must at the same time be both a teacher and a student in the learning enterprise. Luckily, there is a wide literature to help us in these roles and it is growing every day. It should be a goal of every legal educator to appreciate this area of scholarship, understand its breadth and importance, and engage with it in our teaching and writing. This research overview aims to aid the legal educator seeking to learn about learning and access tools for self-improvement. It also provides some preliminary assistance to those researchers beginning to traverse the field on the subject of “learning” and legal education, and it equally serves as a warning of the daunting task that awaits the researcher on that multifaceted subject. This overview and selected bibliography compiles selected sources collected through various searches on legal databases, library collections, and other available sources. The text serves as a guide along the way with some explanatory material to describe the fields. The compilation of these sources will serve independently as a valuable survey, bibliographic collection, and research tool for others (including educators, academic scholars, librarians, students, and lawyers)
The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience
No full textWith its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief...will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand the meaning and application of judicial experience. Just as the plausibility standard is a new part of the federal pleading regime, the requirement that district courts apply judicial experience to resolve a motion to dismiss is a new part of the federal pleading regime. Second, the application of judicial experience—as intended by the Supreme Court—requires district courts to consider information and evidence beyond that alleged in the complaint when resolving a motion to dismiss. Third, and contrary to conventional wisdom, the Supreme Court does not intend the application of judicial experience to require a subjective analysis of the plausibility of a claim. Instead, the Supreme Court wants district courts to consider a larger, objective body of experience—beyond the subjective experience of any particular district court—with similar factual scenarios. Fourth, the Supreme Court anticipates that the application of judicial experience will require district courts to develop a common law of pleading standards that will vary with the type of claim, the type of claimant, the type of defendant and the alleged factual scenario. Finally, I argue that this new pleading regime that requires the application of judicial experience at the pleading stage—even where it is based on objective information—is inappropriate and inconsistent with the adversarial nature of litigation
