tag:blogger.com,1999:blog-14162253.post6364374926246607143..comments2024-03-28T18:57:15.124-06:00Comments on Wash Park Prophet: The Meaning Of TwomblyAndrew Oh-Willekehttp://www.blogger.com/profile/02537151821869153861noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-14162253.post-31988813907833612292008-04-30T22:51:00.000-06:002008-04-30T22:51:00.000-06:00Quite frankly, Andy, I think this is solely academ...Quite frankly, Andy, I think this is solely academic and subject to caprice, as it always has been. The maxim that "we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face" has been applied countless times prior to <I>Twombly</I> and, in practice, heightened pleading standards are imposed on litigants in countless unknown cases that are hurried through the federal court and which are disregarded or rubber stamped by the Tenth Circuit through unpublished opinion practice.<BR/><BR/>Moreover, the ultimate fact rule has been alive and well during the last fifty years, anyway, because A court need not accept as true legal conclusions framed as factual allegations. <I>Papasan v. Allain,</I> 478 U.S. 265 (1986); <I>Jackson v. Alexander,</I> 465 F.2d 1389 (10th Cir. 1972) ("We must liberally construe and accept as true the allegations of fact in the complaint and the inferences reasonably deductible therefrom, but we need not accept as true mere legal conclusions"); <I>Warren v. Fox Family Worldwide,</I> 328 F.3d 1136, 1141 n.5 (9th Cir. 2003) (The district court has not been required to accept as true their legal conclusions even if they are "cast in the form of factual allegations,"); <I>Utah v. Babbitt, </I>137 F.3d 1193, 1207 (10th Cir. 1998) (same).<BR/><BR/>In these instances, where ultimate facts are alleged (rather than evidentiary facts), the court simply construes them as legal conclusions and dismiss under Rule 12(b).<BR/><BR/>Nearly fifty years ago, Professor Karl Llewellyn in his treatise, <I>The Common Law Tradition: Deciding Appeals</I> (1960) at 133 warned us of judges "manhandling of the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach"). More recently William L. Reynolds, in his treatise, <I>Who are the Juristocrats? Guerrila Warfare Among the Courts</I> (March, 2005) confirmed the widespread perception that "[J]udges . . . manipulate the fact-finding and opinion-writing processes in various ways . . . they twist or thwart the controlling authority in order to reach the desired result."); See also Mark Tushnet, <I>Taking the Constitution Away from the Courts</I> (1999) at 155-56 (Judges typically embrace a desired result and then select whichever theory plausibly permits them to reach that result).<BR/><BR/>Similarly, Professor Monroe Freedman stated, "Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules." 128 F.R.D. 409, 439 (1989) (excerpted from speech to the Seventh Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit (May 24, 1989)); <I>See also</I> Gennaioli & Shleifer, <I>Judicial Fact Discretion</I> (October 2006) ("Judicial fact discretion is defined as misrepresentation in a judge's decision of facts revealed in a trial . . . judges engage in fact discretion to promote their own agenda"); Richard A. Posner, <I>Judicial Behavior and Performance: An Economic Approach,</I> 32 Fla. State Univ. L. Rev. 1259 (2005) ("one expects that personal factors—such as political or ideological concerns personal to the judge rather than embodied in the law, the kind of intellectual laziness that consists of acting on intuition rather than on analysis and evidence, and the delights of tormenting the lawyers that appear before them—will play a larger role in federal district judges’ decisions").Seanhttps://www.blogger.com/profile/03132882100134432868noreply@blogger.comtag:blogger.com,1999:blog-14162253.post-34335061891326505352008-04-24T13:29:00.000-06:002008-04-24T13:29:00.000-06:00More good analysis here.More good analysis <A HREF="http://colloquy.law.northwestern.edu/main/2007/11/pleading-standa.html" REL="nofollow">here</A>.Andrew Oh-Willekehttps://www.blogger.com/profile/02537151821869153861noreply@blogger.comtag:blogger.com,1999:blog-14162253.post-36902132919415142472008-04-23T01:19:00.000-06:002008-04-23T01:19:00.000-06:00Empirically, the impact appears to be mostly in ci...<A HREF="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1091246" REL="nofollow">Empirically</A>, the impact appears to be mostly in civil rights cases.Andrew Oh-Willekehttps://www.blogger.com/profile/02537151821869153861noreply@blogger.com