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.

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.

Excerpt:

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.

Ballot Initiatives Gone Wild

By Associate Clinical Professor Jessica Levinson

This op-ed originally appeared on Politix and was re-posted by The Huffington Post.

Here a ballot initiative, there a ballot initiative, everywhere in California a ballot initiative.

How did we get here? About a hundred years ago the processes of direct democracy spread across the country. States gave their citizens the ability to directly enact laws (via the ballot initiative), to directly repeal laws (via the referendum), and to oust elected officials (via the recall). The purpose of direct democracy is to empower average citizens and decrease the power than moneyed interests may have over elected officials. Sounds quaint, doesn't it?

Welcome to 2014, when the very special interests direct democracy was meant to guard against now direct and control those processes. And specifically, welcome to California, where we have not only ousted a governor (Gray Davis) via the recall, but where we frequently use the ballot initiative process. Want to change how many lawmakers it takes to pass the state's budget? Pass a ballot initiative. Want to change the definition of marriage? Pass a ballot initiative. Want to cut or increase taxes? Pass a ballot initiative. Want to change the penalties for criminal offenses? Once again, pass a ballot initiative.

Read the complete piece.

Theft of Trade Secrets Brings Federal Conviction

By Professors Jeffery Atik and Karl Manheim

Stealing a trade secret (reprehensible though this may be) has generally not attracted federal criminal liability. Yet in the recent prosecution of David Nosal, the Justice Department applied a computer hacking statute to convict a departing employee for a rather run-of-the-mill trade secret theft: the unauthorized taking of customer lists. Many if not most trade secrets -- like the customer lists involved in Nosal -- are stored on computers. As such, aggressive use of the federal Computer Fraud and Abuse Act could convert many trade secret misappropriations -- traditionally civil offenses and a state law matter - into federal crimes. And this policy shift -- criminalizing and federalizing -- results from the determinations of prosecutors and judges, and not from Congress.

David Nosal worked for the executive search firm Korn/Ferry International until 2004 when he left to form a rival firm. Upon departure, he signed a standard non-compete agreement, but also recruited 3 fellow Korn/Ferry employees to join his new firm. Before those employees left, they downloaded proprietary customer information from the Korn/Ferry network and provided the confidential data to Nosal.

The Justice Department charged Nosal with 22 counts under the Computer Fraud and Abuse Act, 18 U.S.C. §1030, which prohibits, inter alia, unauthorized access to computer systems for fraudulent purposes. The fraudulent purpose in this case was theft of trade secrets.

Introducing Guest Journalist Blogger Ben Adlin

Our newest Guest Journalist Blogger, Ben Adlin, has served as both a reporter and editor at the Los Angeles Daily Journal, where he is currently an associate editor. As a reporter, Ben has covered federal courts and topics as varied as public employee pensions and efforts to regulate medical marijuana. And his topic could not be more timely. With the high court's January 2014 session around the corner, it's high time to debate the role of oral arguments.

-Associate Dean Michael Waterstone

At Supreme Court, Evolution of Oral Arguments Speaks Volumes

By Ben Adlin, Guest Journalist Blogger
Associate Editor, Los Angeles Daily Journal

Last year, U.S. Supreme Court Justice Antonin Scalia proclaimed that "People who get used to blurbing things on the Internet are never going to be good writers." Yet here am I, a paid writer if not necessarily a good one, blurbing on the Internet about the history of American appellate advocacy. Humor me.

One can hardly fault Scalia for his focus on the written word. His own legal organ operates almost entirely through briefs and opinions, as do virtually all appellate courts in the land. In that world, writing counts. Most seasoned appellate practitioners will tell you that if an attorney today hasn't persuaded the judges through writing by the time she steps up to the lectern, oral argument is largely window dressing.

Amid the turning gears of the appellate engine, oral argument is a "minor, almost formulaic part," said Loyola Law School professor Allan Ides, a former Supreme Court clerk. "I can tell you, at the Supreme Court level, very, very rarely are oral arguments going to make a difference," he said. "You don't even in most cases get to make an oral argument. You just get grilled."

It wasn't always this way. Appellate argument in the republic sprang from the British oral tradition. Rather than paper a court with briefs, attorneys in the Supreme Court's early years would sometimes spend days engaged in rhetorical sparring. This was back when snuff boxes decorated the counsel tables. Those "vanished long ago," the court historical society's website says, "along with arguments that lasted for hours and soared to splendid heights of oratory."