Heightened Pleading Standards under Twombly and Iqbal

One express purpose of the 1938 enactment of the Federal Rules of Civil Procedure was to provide equal access to the federal courts.  The Federal Rules govern the process of a suit, including the initial pleadings (e.g., the complaint), discovery (i.e., the process by which one acquires evidence from an opposing party), and filing motions to dismiss.  The Federal Rules were preceded by common law pleading and code pleading.  Common law and code pleading required strict adherence to formal requirements.  The pleading stage commences a lawsuit and begins with the filing of a complaint with allegations against the defendant.  Under both common law and code pleading, initial pleading requirements were complex.  The Federal Rules of Civil Procedure were enacted, in part, to simplify federal procedure and, in so doing, to open up access to the federal courts.  To satisfy the pleading requirements as set forth in Federal Rule 8(a)(1), one must provide only a “short plain statement” of the facts.

Who is Bob Dylan?

Justin Wolfe & Virginia’s Death Penalty

The Commonwealth of Virginia is one of the great vanguards of capital punishment remaining in the western world.  Since 1982, Virginia has executed over 100 persons, second only to Texas.

Several arguments exist against VA’s use of the death penalty.  These include wrongful conviction, the lack of deterrent effect, the relative expense of the death penalty (when compared to life in prison without parole), racial prejudice, geographic discrimination, moral arguments, and public opinion.  Perhaps the most compelling argument against the death penalty is the possibility of wrongful conviction.

Beast of Burden by the Rolling Stones

On Laws by Kahlil Gibran

Kahlil Gibran

Then a lawyer said, “But what of our Laws, master?”

And he answered:

You delight in laying down laws,

Yet you delight more in breaking them.

Like children playing by the ocean who build sand-towers with constancy and then destroy them with laughter.

But while you build your sand-towers the ocean brings more sand to the shore,

And when you destroy them, the ocean laughs with you.

Verily the ocean laughs always with the innocent.

But what of those to whom life is not an ocean, and man-made laws are not sand-towers,

But to whom life is a rock, and the law a chisel with which they would carve it in their own likeness?

What of the cripple who hates dancers?

What of the ox who loves his yoke and deems the elk and deer of the forest stray and vagrant things?

What of the old serpent who cannot shed his skin, and calls all others naked and shameless?

And of him who comes early to the wedding-feast, and when over-fed and tired goes his way saying that all feasts are violation and all feasters law-breakers?

What shall I say of these save that they too stand in the sunlight, but with their backs to the sun?

They see only their shadows, and their shadows are their laws.

And what is the sun to them but a caster of shadows?

And what is it to acknowledge the laws but to stoop down and trace their shadows upon the earth?

But you who walk facing the sun, what images drawn on the earth can hold you?

You who travel with the wind, what weathervane shall direct your course?

What man’s law shall bind you if you break your yoke but upon no man’s prison door?

What laws shall you fear if you dance but stumble against no man’s iron chains?

And who is he that shall bring you to judgment if you tear off your garment yet leave it in no man’s path?

People of Orphalese, you can muffle the drum, and you can loosen the strings of the lyre, but who shall command the skylark not to sing?

Kandinsky’s Sea Battle

Improvisation #31 (Sea Battle), oil on canvas, 145 x 119.7 cm (54 x 47 in.)

Improvisation #31 (also known as “Sea Battle”) is an abstract image painted by Wassily Kandinsky in 1913.  It does not “represent” or depict a sea battle in the ordinary sense, yet it captures its essence – the commotion and energy of two ships at war with each other on the high seas – and allows us to experience (not dispassionately observe) furious motion, excitement, and confusion.  These emotions are spoken with color, which tumultuously balloons, smudges, extends, and gradiates irreverently across the canvas.  Rising amidst this color are two diagonal lines, which heroically extend upward and to the left as triangular sails fall down the canvas.

Kandinsky’s Sea Battle is no ordinary image; it draws the viewer in, demands participation, and uncovers the inner emotions and thoughts of its participant.  In his abstraction, Kandinsky may unveil an inner struggle common to the human experience.  The viewer is caught up in a flurry of emotions, which merge together into a kind of “super-sensation”- fear, anger, excitement, courage, heroism, &c. become one in a blinding, terrifying display of relativism and fragility.

Opening Day: Sotomayor’s Confirmation Hearings

Judge Sonia Sotomayor

The confirmation hearings for Judge Sonia Sotomayor began before the Senate Judiciary Committee at 10am today and culminated with the opening statement of Sotomayor.  While many experts expect the hearings to be a steamroller, Senator Jeff Sessions, the newly-installed senior Republican on the Judiciary Committee, has noted that, “I think it’s not correct to say that this is just a foregone conclusion.”

Judge Sotomayor’s views on the right to privacy, her views on gun rights, her decision in the Ricci case (which has since been overruled), and her controversial remarks concerning race will come under fire.  None of these controversial issues will likely prevent Judge Sotomayor from being confirmed as a Supreme Court Justice.

Sotomayor has become infamous for her stump speech concerning the role of race in her adjudication.  These remarks, notably the following, will come under attack by members of the Senate Judiciary Committee:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Alongside these remarks, President Barack Obama’s use of the word “empathy” has been called into question by those who dispute its efficacy in an impartial judicial system.

Senator Jeff Sessions (R-AL)

Senator Jeff Sessions has made it clear that he does not empathize with President Obama’s choice of words or his nomination, noting that he fears that “this empathy standard is another step down the road to a liberal activist, results-oriented and relativistic world where – laws lose their fixed meaning, unelected judges set policy; Americans are seen as members of separate groups rather than simply Americans, and where the constitutional limits on government power are ignored when politicans want to buy out private companies. [...]  Call it empathy, call it prejudice, but whatever it is, it is not law.  In truth, it is more akin to politics.  And politics has no place in the courtroom.”

Senator Sessions’ remarks diverge sharply from those of Senator Leahy, who extolled Sotomayor’s “rags-to-riches” story.  Likewise, Senator Schumer (D-New York) argued that Sotomayor’s rulings were moderate across-the-board for her 17 years serving on the bench.  Senator Schumer hailed her as judicially modest and stated that she doesn’t adhere to a philosophy that dictates results over the facts at hand.

The climax of today’s hearings, Sotomayor’s own opening statements, were brief, offering words of gratitude, summarizing her storied past, and emphasizing her impartiality and dedication to the rule of law as a judge.  Sotomayor directly addressed the complaints of many Senators, stating, “In the past month, many Senators have asked me about my judicial philosophy.  It is simple: fidelity to the law.”

The confirmation hearings will resume tomorrow morning at 9:30am.

Click this link to watch a live feed of the Senate Judiciary Committee’s hearings.

UVA BOV line-up: McDonnell v. Deeds

The Board of Visitor line-up is a key issue for University of Virginia students, alumni, and supporters in choosing a candidate in the upcoming gubernatorial race.  This body allocates funds and approves the University’s budget.  Bob McDonnell and Creigh Deeds have two competing visions concerning the future of the University and its role within the Commonwealth of Virginia.  While the legislature holds the purse strings, Larry Sabato is correct in asserting that the governor “sets the tone and specific policies that affect higher education.”

John Quincy Adams: July 4, 1821

"Portrait of John Quincy Adams", oil painting by Marchant, 1843.

As Secretary of State, John Quincy Adams delivered an address on July 4, 1821 that might provide the modern-day United States government with much needed advice.  Adams extolled the virtues of the United States (principally, it’s virtue of liberty), while admonishing it to abstain “from interference in the concerns of others, even when conflict has been for principles to which she clings, as to the last vital drop that visits the heart.”  To the detriment of our nation, Adams’s words have been ignored in recent years.

Iran’s Suppression of Freedom of Speech

Mir Hossein Mousavi

While the state-run media airs images of pro-government supporters marching in a fabricated effort to reclaim the streets of Tehran, thousands of pro-reform protesters march in opposition to numerous frauds committed in recent Iranian presidential elections. Mahmoud Ahmadinejad, the incumbent, captured an alleged victory on June 12, 2009 amidst widespread political turmoil. To appease voters, the Iranian government has ordered a partial recount of the votes. However, Ahmadinejad and the current regime are working tirelessly to quash protesters in their efforts to reveal the truth about Iranian elections. To dispel notions of unrest, the Iranian government has employed state run media to engineer pro-government messages, while preventing unbiased reports from emerging. Journalists have been banned from covering the events and reporters claim that mobile telephone service, text messaging, and SMS have been disabled.  Likewise, the state has begun to filter internet communications, attempting to prevent news from emerging online. Historically western notions of freedom of speech stand in stark opposition to these desperate authoritarian measures. However, many cutting edge American academics have no specific moral qualms about the Iranian suppression of freedom of speech.