Ashcroft v. Iqbal and the Law of Unintended Consequences.

When the United States Supreme Court announced a decision in Ashcroft v. Iqbal on May 18, 2009, the case seemed to attract only modest interest. However, according to the New York Times, a large number of defense counsel in federal civil suits must have been paying close attention. Iqbal has been cited over 500 times by federal courts and is causing motions to dismiss federal civil cases at the complaint stage to be granted in a broad range of cases at an unusual rate.

This case involved a Bivens claim by a Pakistani Muslim who was detained in New York City as part of the investigation of the 9/11 attacks. He was ultimately convicted on charges related to fraudulent identification documents and deported. The complaint asserted that the Attorney General, the Director of the FBI and all of the government officials in the chain of command that ended with the guards in the maximum security facility that housed the plaintiff had discriminated against him and numerous other Muslims in America on the basis of race, religion and national origin by arresting and detaining them and subjecting them to harsh conditions and cruel treatment.

The majority opinion in the 5-4 decision, written by the ubiquitous Justice Kennedy, held that a complaint must contain sufficient facts to form a plausible cause of action and that a judge may utilize common sense to determine if this is the case. Moreover broad legal conclusions, with no factual support in the pleading, may not afford sufficient basis for sustaining the cause of action.

The crux of the matter is that under generally accepted pleading practice under Rule 8 of the Federal Rules of Civil Procedure, broad allegations with little factual detail were sufficient to get to discovery, so long as they stated a cause of action. However, the United States government does not wish to be subjected to civil discovery procedures in cases involving terrorism and national security and judges are generally sympathetic to that concern.

However, the holding in Iqbal was not limited to such circumstances and it is now being applied by federal courts in a wide range of cases. The majority does provide some guidelines for pleading in its analysis of the Iqbal complaint. Perhaps most plaintiffs can overcome an Iqbal challenge by beefing up their pleadings. Meanwhile, life under Iqbal will certainly be the subject of many blog posts, articles, seminars and midnight colloquies.

It is too early to speculate exactly how the Supreme Court will return to this issue, but it seems a good bet that it must. Cases are surging through the courts and the Circuits will be collecting them and probably “splitting” in the process. The Supreme Court will eventually be called upon for guidance and it will be a somewhat different Supreme Court.

Justice Ginsberg was quoted the the Times article as saying that the Iqbal decision has “messed up” federal civil practice. She has a point. This appears to be an application of the Law of Unintended Consequences.

As economist/blogger Alex Tabarrok defined it: “The law of unintended consequences is what happens when a simple system tries to regulate a complex system.” Look for some really interesting cases to pop up under Iqbal.

CLT

Category: Uncategorized

From Russia, but Without Love.

Every day for a year I have been rejecting comments of no value, dozens of them, frequently containing the same text with different senders. About six months ago, I started seeing a lot of comments coming from Germany and Russia (the URLs give it away).

At first, they were written in pidgeon English. They usually raved about how great the post was and stated that they wanted to translate it for their own blog. Some were clearly trying to provoke an email response, probably to sell the address.

Then, comments written in what I presume to be the Russian language, in Cyrillic letters, started to appear. I say “presume” because I can’t read these posts and some or all of them might just contain jibberish. But they came. And came. Five, ten at a time. They concentrated on certain posts, usually old ones. Then they would move to another.

What gives, Russia? When are you going to give it up?

Incidentally. If you would like to have your comment appear on this blog, don’t just say that you loved the post or read the blog all of the time. Don’t tell me that you are going to put it in your Google Reader or however you get your RSS. Yes, I appreciate comments like that from readers. But other readers don’t want to wade through fan mail with no other content. If you want to see your comments posted, you must tell me more. What do you think about the topic discussed? What else would you like to know? Give me more than a one liner. Give me something that readers would like to see. Whether you disagree is not a factor. It may be a plus. I’m a lawyer; we lawyers like a good debate.

And please don’t write your comment in Russian!

CLT

PS: If you want to comment in Polish, send it to the Nutmeg Lawyer.

Category: Uncategorized

1984? We Don’t Have a Record of any Book called 1984. You Must Have Imagined It.

If you purchased 1984 or Animal Farm for your Kindle, you already know Amazon.com reached right into your Kindle and zapped it. According to the story circulating on the net, somebody sold Amazon unauthorized editions, so they erased the electronic memory on customers’ Kindles, with no warning, no permission, no nothing.

I hear that users’ accounts were automatically refunded. Fine, but that doesn’t make the spooky feeling go away.

We didn’t know when we bought our Kindles that Big Brother could read and access the books and periodicals on our personal machine. We assumed that such matters were private.

In 1984, the ubiquitous televisions, the ones you couldn’t turn off, turned out to be electronic two way mirrors. You watched it, but it watched you, too. So now you know that Big Brother watches what you read on the Kindle.

In the book, Winston Smith worked at a very strange job. He sent documents down the “memory hole”, a kind of tube apparatus, whereupon people, places and events were forgotten forever. The meaning of words was altered in the same way, with uses of the word in its old meaning vanishing down the memory tube.

Of course, I’m relying on memories acquired in a single reading, done over a weekend in the seventh grade. We had ordered books through a Science Book Club. Sister Paul collected the money in advance and one Friday afternoon the books were distributed. I read the whole book that weekend. It was the first time I had ever been exposed to so-called adult literature. Apparently, Sister Paul read it that weekend, too.

On Monday, all of us who had purchased the book were required to line up and turn it in. I thought about protesting, but had a better thought. When I handed her the book, I said, a little smugly and with full eye contact, “I’ve already read it!”

CLT

QUICK QUIZ: Among the maxims written on the barn in Animal Farm was: “All animals are Equal.” But one morning the animals noticed that it had been changed. What did it say?

SEE the first comment for the answer.

Category: Uncategorized

Why Blog? Here’s What a Veteran Law Blogger has to Say.

Congratulations to employment law blogger Michael Fox on the seventh anniversary of ” Jottings by an Employer’s Lawyer.” Also, thanks, Michael, for recommending “Why Blog? 10.5 Good Reasons” to your readers.

When “Jottings” first appeared, there were only about three employment law blogs in existence, Fox states. Today, there are at least 100. No wonder. Employment law has been exploding during that time and the exponential increase in blogs means only one thing. Many more people want to know a lot more information on the topic. “Jottings” appears to provide both good writing and an interesting perspective to boot.

So, I’m adding “Jottings” to the blogroll, so that we all can keep up on employment law topics.

CLT

Category: Uncategorized

My Walter Cronkite Memory.

In the mid 1950’s, Walter Kronkite hosted a television show called “You Are There.” Everything is just as it was on (insert a date in history), “except . . . You . . . Are . . .There.”

As the story unfolds, Knonkite the narrator asked news interview type questions of the participants, who turned to the camera and answered them as though being interviewed. Then, they would resume the action with the other participants as though nothing had happened.

Instead of showing you the big event, say a battle, Kronkite would interview eyewitnesses (frequently as they were fleeing the scene) and I remember hearing that these were often based on actual accounts.

One episode had a profound effect on me. It depicted Heinrich Schliemann during his excavations of the archeological site that he believed, and later thought he proved, was the ruins of Troy. The idea that the Troy of the Iliad may have been a real place and that it might be possible to dig it up, hit me like a thunderbolt from Olympus. The show went off the air when I was 10 years old. But over fifty years later, a spark struck by Walter Kronkite burns on in me, like the flames of Homer’s Troy.

Thank you, Walter.

CLT

Category: Uncategorized

Real Estate Lending: New Regs Require Greater Lender Compliance in Timing Preclosing Disclosures.

New Federal Regulations regarding, inter alia, the timing of pre-closing activity became effective for lenders on June 30. Wells Fargo provided a pamphlet on the subject for the retail and the wholesale departments of residential lenders.

CLT

Category: Uncategorized

Good Lawyers Don’t Always Win; Bad Lawyers Don’t Always Lose.

So, it finally happened.

An avowed fan of Perry Mason, or more correctly of Hamilton Burger, his perennial opponent, is going to the Supreme Court.

Senator Al Franken, who must have joined the Senate Judiciary Committee just in time to participate in the Sotomayor confirmation hearings, asked the nominee questions which uncovered the revelation that she decided to become a lawyer (or was it a prosecutor?) because of a fictional character on TV.

Sotomayor remembered Burger, when asked about the role of a prosecutor, saying that justice is served when the guilty are convicted and the innocent are acquitted. Franken had wanted to know (facetiously, of course) why she had chosen a loser like Burger for a hero.

The truth was, Burger always questioned witnesses with consumate skill. During his case in chief, he proved the defendant to be guilty beyond a reasonable doubt with workman-like efficiency. When the prosecution rested, the Defendant’s goose was always well cooked. Thus, by the time Perry Mason called his first witness, it seemed impossible for the jury to return anything but a guilty verdict.

Yet Burger lost cases, lots of them. But, it was not primarily because Mason was the better lawyer. That conclusion was probably true, but even world class lawyering, without more, wasn’t going to extract Mason’s client’s neck from the noose Ham Burger tied.

Oh, no! Burger lost cases because the truth surfaced and he happened to be on the wrong side of it. In the last few minutes of the trial, the true killer was unmasked and delivered into the hands of the prosecution. You can be pretty sure Burger eventually convicted every one of those villains, especially the poor bastards who made a full confession in open court.

Yes, boys and girls, good lawyers lose bad cases, often. Alas, the evidence you wish you had, just isn’t there.

And sometimes, good lawyers even lose good cases. That’s why God invented settlements.

CLT

Category: Uncategorized

Back Talk Requested: “Obscenity Prosecution Tells a Sad Story” Draws Many Comments.

Last August, I wrote a post entitled “Obscenity Prosecution Tells a Sad Story.” It is about a woman who wrote stories involving child sexual molestation and posted them on a website known as “Red Rose”, which required a membership fee of $10.00. A summary of the facts appears in a Wikipedia profile of Mary Beth Buchanan, the US Attorney for the Western District of Pennsylvania, which featured the Fletcher case as one of her most controversial prosecutions.

Since then, this post has drawn hundreds of comments. The overwhelming majority were obvious robotic comments, often with embedded links to porno sites. Many others simply stated that it was a good post, but made no substantive comment. They have been increasing in frequency and I have been noticing that more of them seem to be coming from real people, rather than robots.

Today, a member of a social web site (Wolfbook) appears to have sent links to the story to his friends and some of them are sending me messages. Whereas, I had been deleting all comments on this story, I’ve decided to start posting comments that are substantive and not selling something.

After re-reading “Obscenity Prosecution Tells a Sad Story”, I think that the topic is worth revisiting. Moreover, it has been made timely by the accusations of overzealous prosecution by Buchanan’s office that have lately been voiced from many quarters.

Thank you, Wolfbook members, for your compliments on the post, but I’d really like to hear what you (or anyone else) has to say about the outcome of this case.

Back Talk Requested.

CLT

Category: Uncategorized

So, What’s Wrong with Lawyer Jokes?

Sometimes lawyer jokes are funny. Here’s one. The Anonymous Lawyer, found in our Blogroll, is one continuous running lawyer joke. Even the Nutmeg Lawyer, which we endorsed in its protest of ethnic jokes with a barb, is usually pretty funny. (Intentionally, of course.)

One lawyer joke website says that the problem with lawyer jokes is that lawyers don’t think that they are funny and nobody else thinks that they are jokes. There’s the crux of the matter.

The blog “Overlawyered”, which will never pass up telling what it’s author thinks is a good lawyer joke, believes and advocates the message of the jokes. The message is that lawyers as a group are greedy and dishonest. According to Overlawyered, lawyers are working a corrupt system for personal gain and the lawyer gets rich and everybody else is impoverished.

The truth is no obstacle. In a recent “one-liner” post with a link, Overlawyered proclaimed that Wells Fargo Bank is “suing itself” in a mortgage foreclosure. Of course, there is an obvious and reasonable explanation. The Rules of civil procedure provide that junior lienholders should be named and given notice. Failing to name and give notice on a second mortgage, even one held by Wells Fargo, might be viewed as a technical defect in the title when the property is eventually sold after foreclosure. But such details ruin a good joke. So when I posted a comment to that story a few days ago pointing out this obvious fact, Overlawyer simply blipped it out of existence. Instead, it posted four other (may I say “moronic”?) comments that agreed with its editorial philosophy — that the law is a joke and the joke is on us.

Lawyer jokes are fine as long as they are not promoting an agenda of insulting and demeaning the legal profession in blank. Yes, there can be, and are, Mark Dreyers. But to assert, even deviously through a joke, that Dreyer is the norm, is just plain wrong.

The truth is that the legal profession has the difficult job of vigorously advocating for its clients in an ethical way. Yes, there are lawyers who violate our code of ethics. But they are the exceptions that prove the rule. Those of us who practice law every day, know that the typical member of our profession is a decent, fair individual whose conscience is in good working order.

Lawyer jokes, like other cultural phenomena, cannot be put out of existence. But thoughtful people can and should point out if the message unfairly attacks a group. Jokes with an agenda should be seen for what they are.

CLT

Category: Uncategorized

PLBT Proclaims Solidarity with Nutmeg Lawyer.

In one of its “dumb lawsuit of the day” type articles, involving a plaintiff with a presumably Polish surname, Above the Law, a law blog familiar to PLBT readers, said (after a series of stale sex jokes) that this story made the author of this post feel less guilty about all the Polish jokes she used to tell during her youth. In other words, this story confirms the stereotype of Polish people as dumb, so all those jokes based on that stereotype are okay — this one being the latest.

Well, I won’t claim to have never told or listened to a joke that was premised on the idea that an ethnic, racial or other group had some undesirable characteristic. But, unlike Above the Law, I think
i’ve learned something about insulting, demeaning humor. l still feel guilty over past transgressions and I’m not going to change my mind because an isolated incident appears (to some) to confirm the stereotype.

Ethnic or racial jokes are simply ethnic or racial slurs cloaked in humor. Members of our profession, which demands high standards of ethics and professional conduct, should also be above such unbecoming and unprofessional utterances. If nothing else, our clients are members of these groups. Insult my client and you insult me.

Nutmeg Lawyer‘s Adrian Baron blogged on this subject recently. A reader posted the Nutmeg blog to the comment section following the story in Above the Law. Guess what? The cowards did not publish it! There’s fearless journalism for you! What’s the matter, ATL? Feeling a little sensitive to criticism? Good.

Notwithstanding the foregoing (as we lawyers never tire of saying), if you know any good lawyer jokes, I’d like to hear them. I might even laugh. Then, I’ll publish them, followed by an editorial on how stupid the stereotypical message of the joke really is.

When is a joke not a joke? When it is a slur. Get it?

CLT

Category: Uncategorized

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Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

Pittsburgh Legal Back Talk

Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

1410 Posts and Counting

Categories

Ashcroft v. Iqbal and the Law of Unintended Consequences.

From Russia, but Without Love.

1984? We Don’t Have a Record of any Book called 1984. You Must Have Imagined It.

Why Blog? Here’s What a Veteran Law Blogger has to Say.

My Walter Cronkite Memory.

Real Estate Lending: New Regs Require Greater Lender Compliance in Timing Preclosing Disclosures.

Good Lawyers Don’t Always Win; Bad Lawyers Don’t Always Lose.

Back Talk Requested: “Obscenity Prosecution Tells a Sad Story” Draws Many Comments.

So, What’s Wrong with Lawyer Jokes?

PLBT Proclaims Solidarity with Nutmeg Lawyer.

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