Last week's Senate hearings regarding the impact of Iqbal and Twombly (see posts here and here) were in aid of the Notice Pleading Restoration Act of 2009, S. 1504. The pending bill is reproduced here on the GPO website in PDF. The bill is mentioned in Senator Feingold's opening statement.
There are several new ways to track pending bills in Congress. You might be interested in using GovTrack.us or OpenCongress.org. Both allow for the free tracking of individual bills. You can see previous posts about these Web 2.0 tools here on LLRX, and here and here. Unfortunately, Thomas, while providing a feed for a daily digest and for Senate and House floor action, is not yet providing feeds for individual bills.
Thursday, December 10, 2009
Wednesday, December 9, 2009
Senate Considers Iqbal Impact
Hearings before the Senate Judiciary Committee began last week to determine if legislative action would be appropriate to overturn the USSC rulings in Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly. You can find the relevant Judiciary Committee page here. Look to the right hand column to see links to PDFs of the recently posted prepared testimony before the Committee.
Look here for a post that contains excerpts from the hearings regarding the overall impact of Iqbal and Twombly. One witness went to far as to say that the decisions were "an assault on our democratic principles" (from the prepared testimony of John Payton, NAACP Legal Defense and Educational Fund).
Interestingly, the testimony of Gregory Garre, former Solicitor General, addresses the actual impact of Iqbal on cases pending in federal court. That impact was also discussed here in a previous post.
Garre makes reference to and provides a link to the preliminary report prepared by its Rules Law Clerk for the Civil Rules Committee and the Standing Rules Committee Concerning the “Application of Pleading Standards Post-Ashcroft v. Iqbal.” Unfortunately, the link that Garre give to the report is broken (http://www.uscourts.gov/rules/Memo%20re%20pleading%20standards%20 Nov30.pdf.). Garre, in his testimony, maintains that it is too early to judge the effect of Iqbal.
Iqbal is apparently of sufficient interest and potential impact, however, that a Committee was established to study its effects...
Look here for a post that contains excerpts from the hearings regarding the overall impact of Iqbal and Twombly. One witness went to far as to say that the decisions were "an assault on our democratic principles" (from the prepared testimony of John Payton, NAACP Legal Defense and Educational Fund).
Interestingly, the testimony of Gregory Garre, former Solicitor General, addresses the actual impact of Iqbal on cases pending in federal court. That impact was also discussed here in a previous post.
Garre makes reference to and provides a link to the preliminary report prepared by its Rules Law Clerk for the Civil Rules Committee and the Standing Rules Committee Concerning the “Application of Pleading Standards Post-Ashcroft v. Iqbal.” Unfortunately, the link that Garre give to the report is broken (http://www.uscourts.gov/rules/Memo%20re%20pleading%20standards%20 Nov30.pdf.). Garre, in his testimony, maintains that it is too early to judge the effect of Iqbal.
Iqbal is apparently of sufficient interest and potential impact, however, that a Committee was established to study its effects...
Tuesday, November 24, 2009
Iqbal Impact Update
Now, a little more than six months after the USSC issued its opinion in Ashcroft v. Iqbal, the impact of the decision is still being felt. Readers of this blog may recall a previous post indicating that Iqbal was arguably the most important case decided last term. That statement was based on the fact that Iqbal promised to have a systemic effect. To date Iqbal has not disappointed. It has been cited frequently by federal courts. A quick check using KeyCite shows -
1. A total of 7032 documents (cases, briefs, treatises, articles, etc.) have cited Iqbal.
2. Headnote 12, the headnote that deals with the new threshold test - to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face - i.e., the new "plausibility" test, has been cited by 2789 federal courts apparently for the purpose of examining plaintiff's case for possible dismissal.
3. Headnote 12 has also been cited by four state courts and one tribal court for the same proposition. States that have rules of civil procedure based on the FRCP may be moving to adoption of Iqbal or at least some consideration of the the viability of the Iqbal plausibility requirement to state procedural analysis.
Of course, Iqbal is a complex case that deals with many issues not the least of which is governmental liability. We can't tell without a close examination of all 2789 federal cases that apply Iqbal if it is being used solely as a means to dismiss cases. More likely, it is being used even-handedly to weed out factually weak cases. Regardless, it seems clear that every future Memorandum in support of a 12(b)(6) motion will have to cite it.
1. A total of 7032 documents (cases, briefs, treatises, articles, etc.) have cited Iqbal.
2. Headnote 12, the headnote that deals with the new threshold test - to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face - i.e., the new "plausibility" test, has been cited by 2789 federal courts apparently for the purpose of examining plaintiff's case for possible dismissal.
3. Headnote 12 has also been cited by four state courts and one tribal court for the same proposition. States that have rules of civil procedure based on the FRCP may be moving to adoption of Iqbal or at least some consideration of the the viability of the Iqbal plausibility requirement to state procedural analysis.
Of course, Iqbal is a complex case that deals with many issues not the least of which is governmental liability. We can't tell without a close examination of all 2789 federal cases that apply Iqbal if it is being used solely as a means to dismiss cases. More likely, it is being used even-handedly to weed out factually weak cases. Regardless, it seems clear that every future Memorandum in support of a 12(b)(6) motion will have to cite it.
Friday, November 13, 2009
Lexis Apps On Your iPhone
That's right. After Westlaw made Black's Dictionary into an iPhone app, Lexis has decided to do the same with Get a Document and Shepardize. Mixed reviews but it seems to be another step forward.
BTW, the iPhone app for Black's costs $49.99. The iPhone app for Shepard's is FREE as long as you have a valid Lexis ID and password.
BTW, the iPhone app for Black's costs $49.99. The iPhone app for Shepard's is FREE as long as you have a valid Lexis ID and password.
Sunday, November 8, 2009
LII Posts a Response to Berring
Last week's post highlighted a WestCast video of Bob Berring talking about how commercial resources will endure while volunteer legal resources, like Cornell LII, will not. Well. Here's LII's measured response posted on YouTube. You might be interested in subscribing to the LII blog, here. There is also a post by Paul Lomio on the Stanford blog Legal Research Plus about his Advanced Legal Research class and the similarities of Bob Berring and Tom Bruce, here.
Sunday, November 1, 2009
Berring on Free Legal Resources
Here's a link to a short video of an interview with Bob Berring about the future of free legal resources. West posted it on YouTube and maintains a link to it from their blog here. If you read through the comments at the end of this post, make sure you get all the way to the end. Apparently, there will be another beer summit in D.C. in the near future.
Free resources are here to stay, voluntary or not. It is impossible to disagree with Berring about the value of the editorial features on both West and Lexis but the use of low cost / no cost resources may be the only way to stay alive in the current market. Watch the video for yourself and see what you think.
West has been making some interesting posts lately including one about how cases and headnotes are edited and published. If you are interested in developments in legal research you might be interested in setting up an RSS feed to their blog, Legal Current.
Free resources are here to stay, voluntary or not. It is impossible to disagree with Berring about the value of the editorial features on both West and Lexis but the use of low cost / no cost resources may be the only way to stay alive in the current market. Watch the video for yourself and see what you think.
West has been making some interesting posts lately including one about how cases and headnotes are edited and published. If you are interested in developments in legal research you might be interested in setting up an RSS feed to their blog, Legal Current.
Friday, October 30, 2009
File Sharing Leads to Disclosure of House Ethics Report
There are several reports out this morning regarding the leak of a preliminary report generated by the House Committee on Standards of Official Conduct, aka the Ethics Committee. See the report on the NPR site here, and on the NYTimes site here.
Although one representative deemed this to be "cyber-hacking" it appears, instead, to be a simple case of a staffer releasing the report via a peer-to-peer file sharing site. Cyber-hacking would mean, of course, that the security of the Committee's electronic files had been breached. The Committee statement about the leak is here.
This is nothing new. There have been government leaks before. What is new is that the speed and ease of the dissemination of the leaked material was facilitated by use of the Internet in ways that Congress could not foresee. If the fired staffer had used a large enough email list he would have had the same effect. We can look for hearings and possible legislation on this issue. The answer is not to put additional restrictions on file sharing or to beef up their network. The answer is for Congress to vet its employees more carefully.
Although one representative deemed this to be "cyber-hacking" it appears, instead, to be a simple case of a staffer releasing the report via a peer-to-peer file sharing site. Cyber-hacking would mean, of course, that the security of the Committee's electronic files had been breached. The Committee statement about the leak is here.
This is nothing new. There have been government leaks before. What is new is that the speed and ease of the dissemination of the leaked material was facilitated by use of the Internet in ways that Congress could not foresee. If the fired staffer had used a large enough email list he would have had the same effect. We can look for hearings and possible legislation on this issue. The answer is not to put additional restrictions on file sharing or to beef up their network. The answer is for Congress to vet its employees more carefully.
Wednesday, October 28, 2009
Wex - Substitute for Blacks Dictionary?
For research purposes the answer is probably no. But for 1Ls who don't want to buy Blacks the answer may be yes.
Wex is the online dictionary/encyclopedia available on the Cornell LII website. The dictionary is here; the encyclopedia is here. Most students will find the Wex "all" browse page the easiest to use because you don't need to worry about variant spellings. There is a handy search function you can use if you like.
Why would this work for 1Ls? First, it's free; and free is good. Second, it's simple and simple can be very good when you are starting out.
But for those using the dictionary or the encyclopedia for research the latter reason is exactly why it is not yet suitable for anything but the most simple research tasks. As yet, there is insufficient material to handle any significant research. And, if you did use it how would you cite to it?
Wex works and works well. It does not appear to be the intended to be the ne plus ultra of legal research. As long as you know that, it is a valuable tool to add to your research and 1L study tool belt.
Wex is the online dictionary/encyclopedia available on the Cornell LII website. The dictionary is here; the encyclopedia is here. Most students will find the Wex "all" browse page the easiest to use because you don't need to worry about variant spellings. There is a handy search function you can use if you like.
Why would this work for 1Ls? First, it's free; and free is good. Second, it's simple and simple can be very good when you are starting out.
But for those using the dictionary or the encyclopedia for research the latter reason is exactly why it is not yet suitable for anything but the most simple research tasks. As yet, there is insufficient material to handle any significant research. And, if you did use it how would you cite to it?
Wex works and works well. It does not appear to be the intended to be the ne plus ultra of legal research. As long as you know that, it is a valuable tool to add to your research and 1L study tool belt.
Monday, October 26, 2009
Searching HeinOnline
There were two new posts late last week about more effective searching on HeinOnline. The first is from Shawn Nevers at the HWHLL Blog and a follow up from the HeinOnline Weblog.
It seems likely that the real reason why this mode of searching has become possible is because of Hein's efforts to improve the OCR (Optical Character Recognition) function thereby allowing dependable and reliable word searching.
Although Shawn and Hein are quite correct about the usefulness of the "new" search features the results display (the hit list) may still discourage many researchers. Most students (and faculty!) will continue to use the browse feature to find quality scans of law review articles and other materials that they have found using other search methods.
We are not ready to stop our subscriptions to WilsonWeb (Index to Legal Periodicals) or LegalTrac. Not yet.
It seems likely that the real reason why this mode of searching has become possible is because of Hein's efforts to improve the OCR (Optical Character Recognition) function thereby allowing dependable and reliable word searching.
Although Shawn and Hein are quite correct about the usefulness of the "new" search features the results display (the hit list) may still discourage many researchers. Most students (and faculty!) will continue to use the browse feature to find quality scans of law review articles and other materials that they have found using other search methods.
We are not ready to stop our subscriptions to WilsonWeb (Index to Legal Periodicals) or LegalTrac. Not yet.
Sunday, October 25, 2009
Federal Agency Blogs
Readers of this blog may recall previous posts about practitioner blogs here and here. The original post about the Native American Legal Update blog is here.
The latest niche current awareness service may be the federal government blogs available from an old favorite, USA.gov. The new government blog page is here. Obviously, not every blog is worth following, but for researchers interested in what their favorite regulatory agency is up to, this might turn out to be a new resource.
Are these posts nothing more than press releases? Some are. But the Department of Justice seems to be taking the idea of blogging seriously. Look at the right column for an array of Web 2.0 tools. And, here is a post about the recent memorandum sent to US attorneys about prosecuting medical marijuana cases. The new memorandum containing formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes is set out in full.
The latest niche current awareness service may be the federal government blogs available from an old favorite, USA.gov. The new government blog page is here. Obviously, not every blog is worth following, but for researchers interested in what their favorite regulatory agency is up to, this might turn out to be a new resource.
Are these posts nothing more than press releases? Some are. But the Department of Justice seems to be taking the idea of blogging seriously. Look at the right column for an array of Web 2.0 tools. And, here is a post about the recent memorandum sent to US attorneys about prosecuting medical marijuana cases. The new memorandum containing formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes is set out in full.
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