Posts Tagged ‘The Supreme Court’

Monday Medley

What we read while fumbling the football…

  • One of us is from Staten Island and now lives close to the Jersey Shore. In other words, he’s just living the dream.
  • We’ve been really enjoying Charles P. Pierce’s blog at, and this post’s title, which is almost as long as the post itself, is perfect in taking a shot at fellow Bostonian, Bill Simmons.

The Gay Marriage Conundrum

On Monday, Perry v. Schwarzeneggerthe first legal challenge to the constitutionality of Proposition 8, California’s 2008 ballot initiative banning gay marriage—began in San Francisco. No matter what the outcome, the case is expected to make it to the Supreme Court on appeal.

Ironically, many liberals have been the most outspoken critics of the lawsuit, and for a very good reason: There is a very good chance that this lawsuit will not succeed. After all, 45 states have laws prohibiting gay marriage, only one court (the Iowa State Supreme Court) in the entire country has ruled against gay marriage bans, and the Supreme Court is not very fond of staying out in front of public opinion. The most famous example of the Court’s social progressiveness*—Brown v. the Board of Education—had Chief Justice Earl Warren as a champion; forgive me for skepticism, but it’s hard to imagine John Roberts going to bat for this case. Continue reading

Twombly, Iqbal, Congress, and The End of Plausibility Pleading

20090501_souter_33Being in law school makes law-related news (particularly, that of the non-constitutional variety) more relevant and, therefore, more interesting to me than it previously did.  Nonetheless, I have had the sense not to post on law-related topics that have little relevance to most of our readers. But a loyal NPI friend recently shared a piece of legal news with me that is quite a big deal.

To understand the significance of this news, some background information is necessary:

In Bell Atlantic Corp v. Twombly (2007), the Supreme Court established a new, more stringent standard for upholding a plaintiff’s pleading claim when faced with a defendant’s motion to dismiss that claim. Put in plain English, when a plaintiff initiates a civil suit, they have to make a claim to explain what they are suing for. There are rules in the Federal Rules of Civil Procedure (FRCP)* one of which guides what needs to be stated in a plaintiff’s initial claim, namely that the claim must be “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Short and plain” is purposely in there to indicate that a simple allegation is enough; there just should be enough so the defendant is notified of why he is being accused by the plaintiff. That’s why this is often referred to as “notice pleading”. This simplified pleading system was partially a reaction against “code pleading”, which required fairly significant factual detail for each element of a claim being made. This was heavily criticized because plaintiff often did not have all of the resources and information to have sufficient facts when first making an allegation.

Continue reading