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Can Speech Act Theory Save Notice Pleading?
Get PDFCountless scholars have debated—and lower courts have attempted to apply—the plausibility pleading regime that the Supreme Court introduced in Twombly and Iqbal. Iqbal took Twombly’s requirement that a complaint plead plausibly and turned it into a two-step test. Under that test, the life or death of a lawsuit rests on the distinction between “well-pleaded” and “conclusory” allegations. Only the former are assumed true on a motion to dismiss. Seven decades of pleading precedent had taken a sensible, if unstable, approach to the truth assumption, making a single cut between factual contentions (assumed true) and legal conclusions (ignored). But Iqbal redrew those lines. It treats as legal conclusions an entire subset of factual allegations and does so whenever, in the Court’s view, those facts are presented too generally or too rhetorically. To date, the contours of “conclusory” have not been pinned down by legal-theoretic approaches, while lower court reactions range from conflicting to confused to avoidant. It is clearer than ever that Iqbal left an analytical void in the wake of its novel pleading inquiry—a void that must be filled in a stable way while recognizing the FRCP’s normative commitments.
That way is through speech act theory. Speech act theory is a philosophy of language that employs a descriptive methodology for understanding what speakers mean with their words. A speech act-theoretic approach targets Iqbal’s central flaws—failing to treat pleading as an act of communication and ignoring how the pleader intends her allegations to function in the pleading conversation. Indeed, Iqbal makes the judge’s omniscient view of meaning the decisive factor. Furthermore, Iqbal conflates two types of speech acts whose difference was vital pre- Iqbal: allegations meant to report, which merit the truth assumption, and allegations meant to accuse, which do not. Speech act theory shores up pre-Iqbal instability and offers a consistent analytical approach for granting allegations the assumption of truth based on communicative meaning. Using speech act theory to set the parameters of “conclusory” also opens the doors of discovery to complaints that do their job as the FRCP intended: providing functional fair notice of the nature of the plaintiff’s claims and the grounds on which they rest
Abdication Through Enforcement
Get PDFPresidential abdication in immigration law has long been synonymous with the perceived nonenforcement of certain provisions of the Immigration and Nationality Act. President Obama’s never-implemented policy of deferred action, known as DAPA, serves as the prime example in the literature. But can the President abdicate the duty of faithful execution in immigration law by enforcing the law, i.e., by deporting deportable noncitizens? This Article argues “yes.” Every leading theory of the presidency recognizes the President’s role as supervisor of the bureaucracy, an idea crystallized by several scholars. When the President fails to establish meaningful enforcement priorities, essentially making every deportable noncitizen a priority, and resources for enforcement are insufficient to achieve full enforcement, the President de facto delegates that discretion to the rank and file without requisite constraints. In so doing, the President abdicates this supervisory role, producing abdication through enforcement
Cryptoassets and their Regulation under UK and EU Law in the Post-Brexit UK
Get PDFCryptoassets are used increasingly as stores of value, means of making payments in domestic and cross-border transactions(including person-to-person (“P2P”) payments), and as enterprise solutions for speedier execution of trades in financial instruments or other commerce. Their emergence from the work of Satoshi Nakamoto to real-world applications has prompted attention from legislatures, regulators including law enforcement agencies, service providers and adopters.
The UK, as well as other nations, has used its legislative and regulatory authority to attract crypto-businesses and other financial-services innovators to its shores. Because some nations seek to entice financial innovations and others remain sceptical, tensions will arise between these two camps. Tensions create uncertainty in markets and opportunities for regulatory arbitrage.
Regulating cryptoassets necessarily implicates appreciating their current and potential utilities. When regulators approach a cryptoasset or question how the asset operates, their characterisation of the asset may depend on how the cryptoasset may be marketed or used. Additionally, regulatory decisions may depend on traditional differences between regulation for the sake of consumer protection (including licensure and prudential regulation), criminal law, domestic monetary control and policy, and national security (including anti-money-laundering and counter-terrorism-finance purposes). Cryptoassets regulatory decisions are also influenced by the terminology used to explain comparable, non-crypto products and services.
The UK’s complete separation from the EU on 31 December 2020 provides fresh opportunities for innovation in cryptoassets markets and their regulation on both sides of the English Channel. This article looks at the foundational agreements that influence Post-Brexit regulation and uses them to analyse recent policy and judicial actions relating to cryptoassets in the UK and other EU member states.
The second part of this paper provides background on EU laws that the UK will remain obligated to observe post-Brexit. What is commonly known as “Brexit”, the UK’s exit from the EU, officially began on 31 January 2020 and ended on 31 December 2020. This transition period (known as the “Implementation Period” or “IP”) was regulated by the EU (“Withdrawal Agreement”) Act. Post-Brexit relations between the UK and the EU are governed by several Agreements signed by the Parties and negotiated following the UK’s 2016 referendum on membership. Among these forward-looking Agreements is the Trade and Cooperation Agreement[hereinafter “the Trade Agreement”]. For a better understanding of its effect on providers of cryptoassets, we discuss the UK’s position towards the body of EU law that the UK has agreed to follow after Brexit.
The third and fourth parts frame issues related to internal law decisions in the UK, France, and Italy as examples of this complex of internal (or national) and EU law that is emerging. The final part provides some observations on what the Trade Agreement and developments in internal and EU laws – whether legislative, regulatory, or judicially made law – may mean to the opportunities for wider adoption of cryptoassets in the EU, UK, and, of course, the US. It also shares some questions to be explored in future projects
The Regulatory and Procedural Examination of Trademarks in Saudi Arabia: Deficiencies in the Similarities Factor and the Registration Requirements
Get PDFThe purpose of trademarks is to protect consumers from confusion between products and to support fair competition in the market. However, in Saudi Arabia, to determine the similarities between trademarks, the Trademark Registration Office relies on the class number, rather than the goods and services category. This is a prevailing issue in the Kingdom’s practice of trademark examination. Therefore, this dissertation investigates how improper understanding and application of Nice Classification by the Gulf Cooperation Council (GCC) Trademark Law and the Registration Office at the Saudi Authority for Intellectual Property generate overlapping between goods and services. This study ascertains that there are substantial contradictions in the provisions of the GCC Trademark Law that contribute to the issue of overlapping between products. In addition, this study finds that the procedures the Trademark Registration Office uses to examine trademark applications are inadequate. Lastly, it reveals that the Board of Grievances lacks sufficiently developed legal trademark principles to overturn the registration of similar goods and services trademarks that are directly or indirectly related.
This author proposes amending the relevant articles in the GCC Trademark Law to state specifically that the relationship between goods and services to be considered imperative, regardless of the class. The Saudi Authority for Intellectual Property should also recruit a Trademark Registration Office staff charged with the authority to apply procedures to prevent the practice of trademark dependence on class, rather than on the goods and services. A specialized court should be founded to concentrate on trademarks and intellectual property, in general. Finally, the court of law’s cooperation with trademark experts is essential
Volume 2 (November 2021)
Get PDFA newsletter produced jointly by the Indiana University Maurer School of Law Office of Graduate Legal Studies and Office of International Programs
Policing the Wombs of the World\u27s Women: The Mexico City Policy
Get PDFThis Comment argues that the Policy should be repealed because it undermines
firmly held First Amendment values and would be considered unconstitutional if
applied to domestic nongovernmental organizations (DNGOs). It proceeds in four
parts. Part I describes the inception of the Policy and contextualizes it among other
antiabortion policies that resulted as a backlash to the U.S. Supreme Court’s
landmark decision in Roe v. Wade. Part II explains the Policy’s actual effect on
FNGOs, particularly focusing on organizations based in Nepal and Peru, and argues
that the Policy undermines democratic processes abroad and fails to achieve its stated
objective: reducing the number of abortions. Part III examines current First
Amendment doctrine on unconstitutional conditions and free speech and
acknowledges standing issues regarding FNGOs. It argues that the Policy should be
considered a violation of protected First Amendment speech because if it were
applied to DNGOs it would be considered unconstitutional. In Part IV the Comment
considers foundational First Amendment values (the marketplace of ideas, individual
autonomy, and democratic self-governance) and argues that the Policy should be
repealed, or at the very least revised, because it undermines and contradicts each of
these values
Sharenting and the (Potential) Right to Be Forgotten
Get PDFPart I of this Note serves as an evaluation of parental use of social media and
further seeks to draw attention to the social and developmental impact parental
oversharing can have on children. Part II examines the tension between parents’
constitutional rights to direct the upbringing of their children, as well as their First
Amendment interest in online expression, and their children’s interest in personal
data security and privacy. Part III provides an overview of the European Union’s
right to be forgotten framework in the sharenting context and considers the
plausibility of implementing such a framework in the United States. Given the
competing constitutional interests at stake, I argue that a balanced-rights approach
should be taken to empower minors to control what personal information can be
permanently disclosed about them, while also preventing infringement on the rights
of parents to express their views on parenting and direct the upbringing of their
children. The right to be forgotten framework—adopted from the European Court
of Justice’s landmark ruling in Google Spain v. Costeja and codified in the General
Data Protection Regulation as the right to erasure—would be an effective means of
balancing these competing interests, as parents would still have the ability to disclose
information about their children and family life on social media sites, while children
would have the option to request that search engines remove links to specific pages
when the child’s name is searched
Cares Act Gimmicks: How Not to Give People Money During a Pandemic and What to Do Instead
Get PDFThe coronavirus pandemic upturned Americans\u27 lives. Within the first few weeks, millions of Americans reported being laid off from their jobs. Other people were working reduced hours or were working remotely from home. Children\u27s daycares and schools closed, and parents were thrown into new roles as educators and full-time babysitters, while, in some instances, also continuing to work full-time jobs. The profound financial effects caused by even a few weeks of the coronavirus\u27 upheaval spurred Congress to pass the CARES Act, which purported to provide economic relief to individuals and businesses.
For individuals, the CARES Act includes five provisions that were effectively designed to provide people money: a direct payment in the form of a tax rebate, enhanced employment benefits, additional paid sick leave, a limited mortgage foreclosure and eviction moratorium, and temporary suspension of some student loan payments. Of these provisions, the direct payment and enhanced employment benefits were the two touted as centerpieces of the CARES Act and the two most likely to aid the majority of American households.
Ultimately, this financial support will prove to be shockingly minimal. The direct payments represent a fraction of the average American households\u27 monthly budget. It also quickly became apparent that the payments were unlikely to reach most people within any sort of useful timeframe, and that once they did, they could be garnished immediately by debt collectors and even banks themselves. The unemployment benefits, while providing people with more money over several months, required that people be laid off and similarly were unlikely to reach people quickly enough to be effective.
These corner pieces of the CARES Act are best understood as gimmicks. Through them, the federal government told people that it would take care of them in ways that were immediately salient to them as the coronavirus crisis began. People\u27s wages decreased at the exact time they were spending more money to stock up on supplies. The CARES Act promised to send people small checks and augment unemployment benefits. Americans very soon began to discover that these promises would do little to help them survive the coming months of financial and social upheaval.
It also became quickly apparent to at least some lawmakers that Congress would need to pass at least one additional stimulus package. And with projections that the pandemic could last for twelve to eighteen months,it seems that Congress may have several more opportunities to craft legislation that actually will help American families survive the pandemic. This legislation must provide people with true funding to stay current with their minimum necessary expenses as these expenses are incurred. In this Essay, we discuss the gimmicks of the CARES Act\u27s individual provisions and what Congress should do for people in future bills to address this pandemic. If done right, helping individuals will cost the government more than $2 trillion next time, and the time after that, and possibly the time after that. And, if done right, it will be worth every penny
Doing Unrepresented Status: The Social Construction and Production of Pro Se Persons
Get PDFIn this Article, I propose an understanding of the dynamic process through which society does unrepresented status that is informed by psychological and sociological research. In describing this doing of unrepresented status, I elaborate on two new concepts: the social construction of pro se status and the social production of unrepresented persons. These concepts illuminate ways in which the doing of unrepresented status is a routine, recurring feature in how court officials, lawyers, and law-trained persons perceive and interact with unrepresented persons within our civil justice system. That is, a pro se party is not something that an unrepresented person is; rather, pro se status is socially constructed.
In describing this doing of unrepresented status, I describe a dynamic process in which societal decisions influence the very presence and prevalence of unrepresented persons within our civil justice system (the social production of unrepresented persons) and the way in which the meaning of these unrepresented persons is, in turn, socially constructed into pro se persons—such as through the application of stereotypes, schemas, biases, expectations, and labels onto these unrepresented persons (the social construction of pro se persons). This dynamic process—this doing of unrepresented status—varies with and depends on the contexts and social identities of the persons involved (Part IV). This novel understanding of the doing of unrepresented status stands in contrast to the belief that unrepresented persons are natural, inherent, or fixed features of a civil justice system or that pro se status is a stable essence, or an essential nature, that explains the presence of unrepresented persons in the civil justice system