How Cautionary is Erickson v. Pardus? (with an excursus on Commerce Clause disillusionment)

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2 Responses

  1. Howard Wasserman says:

    I immediately thought back to U.S. v. Robertson as soon as I saw the order in Erickson and had the same view that both are signals to lower courts and litigants that the Court did not mean to change things so dramatically and that they should not go crazy.

    Lopez (and then Morrison) did have an important effect on the jurisprudence–Even if later cases such as Raich did not strike down federal laws, Lopez/Morrison at least force the courts to take a hard(er) look at the question. That could be part of Twombley’s impact–making sure lower courts take a close look at 12(b)(6) motions that challenge factual sufficiency even in non-Rule 9 cases, rather than simply falling back on Conley’s “no set of facts” language. In truth, of course, lower courts generally were taking that close a look.

    Twombley also could be what I call a “pendulum” case, only in reverse. The historic trend has been that SCOTUS insists on liberal notice pleading, lower courts require a bit more factual detail (as discussed in Christopher Fairman’s work), then SCOTUS pulls the pendulum back, reminding us that it is notice pleading (Leatherman, Swierkiewicz). Twombley and Erickson together can be seen as SCOTUS trying to set the pendulum of factual detail into some explicit range.

  2. Mike O'Shea says:

    I will be especially interested to see how the Seventh Circuit interprets and applies Twombly and Erickson. It is a smart court with a history of making important procedural rulings, and (as I’m not the first to observe) Judge Easterbrook, in particular, has been a diligent enforcer of liberal notice pleading against the district courts’ attempts start to try to require more detail. I assign one of his opinions (Kolupa) as an exemplar of the straight-up, “no set of facts” Conley approach to pleading. But that approach has now been rejected, to at least some degree, in at least some cases.