Author Archive for jonathan-siegel
Iqbal Empirics
posted by Jon Siegel
In response to my post yesterday, my colleague Orin Kerr asks whether Iqbal might lower the high costs of civil litigation by reducing the use of costly mechanisms such as discovery and summary judgment motions. This is a good question.
In analyzing Orin’s question, the first thing to notice is that, while Iqbal might save some costs, the decision also imposes costs. Because of Iqbal, pleading becomes more expensive. Not only is it more expensive to draft the initial complaint, because no one knows any more exactly what needs to be in the complaint, but, as numerous cases already show, Iqbal is returning us to the days when a case begins with “polishing the pleadings”: the defendant moves to dismiss, the court grants the motion with leave to replead, the plaintiff tries again, and we may go around multiple times (possibly including an appeal) before the plaintiff has a complaint that passes the applicable standards. And then we get to the costs of discovery and summary judgment.
The view of the drafters of the Federal Rules (particularly Dean Clark, who was very clear on this point) is that polishing the pleadings is a waste of time and money and we might as well get right to the other mechanisms that we’re just going to get to anyway, after polishing the pleadings.
So it’s not as simple as saying that Iqbal might save costs. What’s going to happen is that Iqbal will save some costs while imposing different costs. And I think the biggest cost that Iqbal is meant to save is not so much disovery costs per se, but the costs of settlements coerced by plaintiffs bringing doubtful claims against defendants who end up settling to avoid litigation costs (this is suggested by the Court’s opinion in the predecessor case of Bell Atlantic v. Twombly). The ultimate question is whether Iqbal‘s will save or impose costs on balance.
As I have previously acknowledged (before I gained fame and fortune on Concurring Opinions) this is an empirical question — and one that would be quite difficult to answer reliably. The Civil Procedure professor community, including myself, is, I think, biased in favor of the traditional answer (that strict pleading requirements end up costing more than they save) because that’s what we’ve been teaching the students for the last 70 years. But really, we should admit that it is at least possible that Iqbal would produce savings in the long run.
But I am inclined to doubt it. It seems more likely that Iqbal will just end up raising costs, by adding more pleading costs to discovery costs that will end up getting incurred anyway. And more important, Iqbal seems unfair. As some lower court cases are showing, Iqbal is trapping some plaintiffs in a Catch-22: they can’t successfully plead their cases because they don’t have information that they can’t get without discovery, which can’t get started until they successfully plead. (I suppose this will result in some savings, but again, I question whether there will ultimately be net savings.)
Given that it’s very difficult to tell whether Iqbal will save or cost money in the long run, I am inclined to say that we should continue the fairer system of letting cases get started without insisting on too much detail in the pleadings. But I would be open to rethinking the matter if anyone could come up with good empirical cost data on Iqbal.
September 9, 2009 at 6:50 am
Posted in: Civil Procedure, Uncategorized
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Iqbal Keeps Spreading
posted by Jon Siegel
I previously discussed how the Supreme Court’s Iqbal decision is going to have a big impact on federal civil litigation. Jaya Ramji-Nogales suggested that maybe it won’t have such a big impact after all. It’s still too early to say definitively who’s right, but take a look at this – Iqbal applied to a slip-and-fall case!
For those just tuning in, the Supreme Court’s decision last term in Ashcroft v. Iqbal upended some long-standing rules of pleading in civil procedure. The previous understanding was that a civil complaint — the document that by which the plaintiff starts a civil case — just had to give the defendant a general notice of what the case was about. It didn’t have to go into specifics or detail. If the plaintiff says, “I worked for the defendant and the defendant fired me because of my race or religion,” that states a sufficient claim. The plaintiff doesn’t have to say how she knows what the defendant’s motives were. Sure, the defendant is eventually entitled to that information, but it doesn’t have to be in the complaint. That’s what discovery is for.
Iqbal throws the rules into confusion. Under Iqbal, the trial court gets to disregard allegations it regards as conclusory (a term the Supreme Court didn’t clearly define) and make some judgment about whether the complaint is sufficiently plausible to require a response. Under this new regime, it’s far less clear that a one-sentence allegation about why the plaintiff got fired would be sufficient without some further allegations that show some evidentiary support. Courts have been dismissing all kinds of cases on the basis of insufficient allegations, such as this dismissal of a case in which plaintiff alleged that she took the defendant’s drug and suffered a terrible injury as a result, which got dismissed because, in the court’s opinion, the plaintiff didn’t sufficiently allege how she knew the drug caused her injury.
Now we have the ultimate in Iqbal dismissals — a dismissal in a slip and fall case! Plaintiff alleged that she slipped and fell on liquid on the floor of defendant’s store. Insufficient! says the district court. Plaintiff has to allege either that the store owner caused the liquid to be on the floor or that the owner had actual or constructive notice that the liquid was on the floor and failed to remove it within a reasonable time or warn the plaintiff of it. And how exactly is the plaintiff supposed to make these allegations without discovery?
This is what’s wrong with Iqbal. Of course if the plaintiff can’t prove all the elements of her claim under the applicable substantive law, she will ultimately lose. But what does it matter if every last point is in the complaint? The defendant knows perfectly well what the case is about — plaintiff slipped and fell in defendant’s store and claims that defendant is responsible. We don’t need any more to get started. There are other mechanisms to thrash out questions such as the questions raised by this case — specifically, discovery and motions for summary judgment.
As this case shows, Iqbal is going to send us back to the era of endless wrangling about exactly what has to be in the complaint. We’re going to waste a lot of time polishing the pleadings. And apart from everything else, it’s going to cause years of confusion. Before Iqbal I could at least give a confident judgment about whether a complaint was sufficient. Now I have no idea. If people can’t even get a slip-and-fall case into court, we’re in trouble.
Update: As Jaya points out in the comments, the post attributed to her above was actually a post by Adam Steinman, transmitted to Concurring Opinions by Jaya. Thanks for this correction and sorry for the error.
September 8, 2009 at 12:40 pm
Tags: pleading, torts
Posted in: Uncategorized
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What’s a Tweet?
posted by Jon Siegel
Twitter’s application for a trademark registration on the word “tweet” was recently rejected, which led to a discussion among some colleagues and myself as to whether the word is a generic term. The argument in favor is that the word “tweet” has become a common term, which has entered dictionaries and even the AP style guide, as the linked article shows.
A basic principle of of trademark law is that no one can trademark a “generic” term, which is to say, the common term for article or service being sold. Thus, no one could own the exclusive right to sell toothpaste under the name “toothpaste.” That would hardly be fair to competing sellers of toothpaste, and the generic term also doesn’t perform the basic function of a trademark, which is to tell consumers the source of the product, not what the product is.
Nonetheless, I would say that “tweet” is not generic. Yes, “tweet” has become a common term, but with what meaning? To me, “tweet” means, “a short message carried via the Twitter service.” It doesn’t mean, generically, “a short message,” or even “a short message carried via some social networking service.” It is specific to Twitter. I don’t think of the short messages I send to my Facebook friends as “tweets.”
This usage is confirmed by that eminently reliable source, Wikipedia, which defines “tweet” as “A micro-blog post on the Twitter social network site, or the act of posting on it.” And urbandictionary.com says that a “tweet” is “A post on Twitter, a real-time social messaging system.”
So I would say that “tweet” still performs a trademark’s source-indicating function. It tells you that the thing named is associated with Twitter specifically. Perhaps people will soon start referring to any short message as a “tweet,” but it hasn’t happened yet. So I say that “tweet” is not generic.
September 2, 2009 at 6:22 am
Tags: Intellectual Property
Posted in: Uncategorized
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Back in the Saddle Again
posted by Jon Siegel
Two hours from now I will teach my first class in 15 months. My sabbatical is over.
I’m actually looking forward being back in the classroom. I didn’t feel this way so much on my first sabbatical back in 2001-2002, or even in the first semester of this sabbatical, but beginning around January or so I started to think, hey, where are my students? I miss them.
The funny thing, which I do remember from my first sabbatical, is that the students have no idea. As I walk in today, they won’t be thinking, whoa, this is his first class in 15 months — I wonder how he’ll do — better cut him a little slack. No, they’ll just expect the same polished performance as always.
Which leads to a more general observation: That’s what the students always expect.
Think about a water tap. When you turn it on, you expect water to come out. It occurs to you only rarely, if ever, to think about the amazing amount of labor, planning, and ingenuity that went into bringing the water to that tap. You just expect it to work.
If you’re a professor, that’s how your students think about you. To them, you are a water tap. When they turn you on, they expect a class to come out. They never think about the preparation and planning involved. Your need to prepare a class while juggling your writing projects, committee responsibilities, and personal life, and the possibility that you may be ill or out of temper, are equally outside their consciousness. When I was a student, I was among the more academically minded (I did become a professor, after all), and still, I had only the dimmest notion that professors spent time preparing for class.
The result is that students will sometimes be insufficiently prepared to receive the benefits of the class you have worked hard to plan for them and they may show less appreciation than your efforts deserve. Professors, never resent this or expect it to be otherwise than it must inevitably be.
September 1, 2009 at 6:27 am
Tags: academia, Law School
Posted in: Uncategorized
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