Thursday, February 27, 2014

Loyola Professors File Amicus Brief in Supreme Court Case on Pleading Standards

By Professors Simona Grossi and Allan Ides

In October 2004, two groups of demonstrators assembled near the Jacksonville Inn in Jacksonville, Oregon, where President George W. Bush was scheduled to dine. One group was pro-Bush and the other was anti-Bush. When President Bush arrived at the Inn, both groups were in identical proximity to the president, each on a sidewalk near or adjacent to the Inn. Shortly after the president’s arrival, Secret Service agents ordered the anti-Bush group to move to a place where they were less visible and less audible to the president. The pro-Bush group was not required to move. Members of the anti-Bush group sued the Secret Service agents claiming a violation of their First Amendment rights. The case is now pending in the Supreme Court, where one of the issues presented is whether the plaintiffs’ Second Amendment complaint satisfies the pleading standards established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Those standards focus on the elements of the claim and on the non-conclusory, factual matter alleged in the complaint. Under Twombly and Iqbal, the sufficiency of a complaint must be established by reference to the alleged facts and the reasonable inferences that may be drawn therefrom. The question is whether those allegations and inferences plausibly suggest a claim upon which relief can be granted.

The critical question presented in Wood v. Moss pertains to how a court must assess inferences drawn from the non-conclusory factual allegations. The government argues that the SAC is deficient because any “conceivable” inferences of unlawful intent that may be drawn from the factual allegations cannot withstand a “more likely” neutral explanation for the agents’ behavior, specifically a lawful motivation to protect the president from harm. The respondents assert, on the other hand, that the specific allegations of differential treatment between the similarly situated pro-Bush and anti-Bush demonstrators, coupled with specific allegations of a pattern of similar acts of viewpoint discrimination by the Secret Service, provide ample support for an inference of discriminatory purpose. 

We co-authored an amicus on behalf of professors of Civil Procedure in which we argue that the Court should adopt an approach to inferences that recognizes the primary role of district courts in making what is essentially a practical and commonsense judgment as to which inferences may be sufficient to support a claim. Certainly, a mechanical formula intended to instruct courts on how to identify a reasonable inference would serve neither the ends of justice nor principles of sound case-management. We further argue that conflicting reasonable inferences should not be resolved in a Rule 12(b)(6) motion, where the plaintiffs’ factual allegations, and all reasonable inferences taken therefrom, are presumed to be true. Such conflicting interpretations of the facts should await discovery, summary judgment and, if necessary, trial. A copy of our amicus brief can be found here.

Thursday, February 6, 2014

What Obama Left Unsaid on Helping the Long-Term Unemployed

Associate Dean Michael Waterstone

This op-ed originally appeared in Roll Call.

People who have been without work for a long period of time are hurting. Even the most tenacious job seeker becomes discouraged over time, and their skills inevitably erode. The longer you are out of a job, the less attractive you become to employers, who wonder why you cannot find work. It is a vicious cycle, and your ability to support yourself and your family deteriorates.

Although some things have improved since the Great Recession, the job prospects for the long-term unemployed have not. Many companies now explicitly advertise that they will not accept job applications from people who are not currently working elsewhere. That is why it is a good thing that President Barack Obama used his State of the Union address to address the issue. The president's call to help the long-term unemployed is right in line with his larger theme of creating good jobs to help bolster the middle class as part of an "opportunity agenda."

Read the complete op-ed.

Prof. Levenson publishes review of American Founding Son: John Bingham and the Invention of the 14th Amendment

By Professor Laurie Levenson

Professor Levenson's review, "When Legislators Actually Mattered," appeared in the Los Angeles Review of Books.


PROFESSOR GERARD MAGLIOCCA spares no detail in his comprehensive review of John Bingham's life and his drafting of the 14th Amendment to the Constitution. For history buffs, constitutional scholars, and civil war experts, the book is a smorgasbord of facts about a critical period in America's history. The reader is taken step by step through the political and legal hurdles required to enact one of the most significant post-Bill of Rights provisions of our Constitution.
The 14th Amendment makes America the country it is today. Without it, Reconstruction following the Civil War was unlikely to have succeeded. Without it, there would be no limits on the states' ability to restrict freedoms of speech and religion, nor any guarantee that local law enforcement would honor citizens' rights against unreasonable search and seizure.

Read the complete review.