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The various doctrines of subject-matter jurisdiction represent some of the most important limitations on the powers of the federal judiciary, and the Supreme Court has repeatedly said that Article III standing, which enforces the Constitution’s “case or controversy” requirement, is the most important of these jurisdictional doctrines. So a federal court that exercises its coercive power over litigants by entering a final judgment without first ensuring that the plaintiff has Article III standing would plainly violate the separation of powers. This much should be indisputable. But what if a federal court exercises its coercive power over litigants before entry of final judgment — say, by unlocking the doors to general discovery that is likely to be so expensive that it effectively coerces the defendant into an in terrorem settlement of a weak claim? Simple logic would suggest that the court should correspondingly shift earlier its resolution of the plaintiff’s Article III standing as well. Yet courts inexplicably defer resolving contested issues of standing when raised by defendants, instead treating Article III standing as if it were just another merits issue: something to be plausibly alleged in a complaint, supported by substantial evidence (taken as true) at summary judgment, and eventually proved by a preponderance of evidence at trial. We argue that this approach is wrong, because it potentially subjects litigants to years of coercive proceedings absent a genuine case or controversy. Instead, we propose that courts exclusively and definitively resolve contested issues of Article III standing, no matter when they arise in the litigation, using Rule 12(b)(1) of the Federal Rules of Civil Procedure — including by holding evidentiary hearings and making credibility determinations as necessary. This approach would ensure that courts do not stray beyond the constitutionally dictated boundaries of their power by coercively affecting the primary conduct of litigants without first ensuring the existence of a genuine case or controversy.

To make out a claim for securities fraud under federal law, a plaintiff must plead and prove the misrepresentation of a material fact. The Supreme Court has repeatedly defined a material fact as one that would be important to a reasonable investor in deciding how to act in that it would change the total mix of information — although it need not necessarily change the ultimate decision of the investor as to how to vote or whether to trade. The courts have also defined a material fact as one that would affect market price — which clearly implies that it must have changed the decisions of some investors. Although these two definitions of materiality appear to conflict, they can be reconciled as alternative expressions of the same standard, the former referring to individual investors and the latter referring to investors in the aggregate. Indeed, the Supreme Court has held a fact cannot be material if it cannot matter to the ultimate outcome, suggesting that a fact cannot be material if it does not affect the behavior of a number of investors sufficient to move the market. Arguably, it would be appropriate to consider price impact in connection with the decision to certify a securities fraud action as a class action under the fraud on the market (FOTM) theory since a class action involves the claims of investors in the aggregate and since price impact need not be dispositive as to the merits of the individual claim of the lead plaintiff who may be able to recover under the individual investor standard. The Supreme Court foreclosed that option in its Amgen decision, possibly for fear that failure to determine materiality in the context of a class action might lead to a multiplicity of lawsuits. Nevertheless, the Amgen Court stated that determination of the question may be appropriate on summary judgment even though earlier decisions have emphasized that materiality is a matter of fact that should not be decided by any bright line test. Moreover, in focusing on materiality as a matter of merit, Amgen says nothing about when a court should consider other grounds for rebutting the FOTM presumption of reliance based on the likelihood that the plaintiff class includes significant numbers of atypical investors who may have been indifferent to company-specific market prices and thus may not be adequately represented in a class action.

The courts have long recognized a general right to inspect and copy judicial documents. Yet, large swaths of filings in patent litigations are often inaccessible. This article takes a closer look at this phenomenon by examining a single case. The Monsanto v. DuPont dispute over genetically modified Roundup resistant crops was chosen because of the impact it has on both agribusiness and patent law. The $1 billion award against DuPont will undoubtedly shape the future of the market for genetically modified crops. Moreover, because the award was issued before a single infringing seed was sold, the case raises novel patent remedy issues. This article assesses how transparent this landmark case was from two perspectives. Initially, it measures the nature and quantity of documents filed under seal. Next, this article selectively drills down on three different phases of the litigation, the pleadings, summary judgment and trial, to provide a more nuanced understanding of what the public cannot see. The results show a case that was fought largely in secret except for trial which was mostly open. Approximately 34% of the 1,697 of the filings listed in the PACER docket were filed under seal. This includes many of the key filings and court decisions. Moreover, the large majority of these secrets filings were made without any judicial oversight. It may be that the court simply did not have the resources to review all the applications to seal in this massive case. But regardless of the cause, this case highlights a recurring problem in patent litigation; the rampant sealing of documents of significant importance to the public.

Insurance payment to cover costs of prophylactic surgery is occasionally denied to patients who may be at inordinately high risk for hereditary cancer. We describe a 43-year-old woman from a hereditary breast-ovarian cancer (HBOC) family which showed linkage to BRCA1 and who was at inordinately high risk for cancer but who was denied insurance coverage for prophylactic oophorectomy, despite strong recommendations by her gynecologist and a cancer geneticist-medical oncologist. The insurance company claimed that the surgery was not medically necessary because the woman's condition (hereditary cancer predisposition) was not an illness. A summary judgment issued by the Douglas County (Nebraska) District Court ruled in favor of the denial decision of Blue Cross/Blue Shield. But on appeal, the Nebraska Supreme Court offered the conclusion that the patient did in fact require this prophylactic surgery and overruled the District Court's decision for denial. The litigation provides the basis for this case report and may provide a precedent for insurance coverage for patients at high risk for hereditary forms of cancer.

International arbitration is sometimes criticised for being inefficient and expensive. The adoption of summary judgment procedures is one way in which the practice of international arbitration might be improved. However, tribunals may be hesitant to adopt summary judgment procedures for fear that they do not have jurisdiction or that the summary award will be unenforceable or set aside. From the perspective of the English jurisdiction, this article discusses the barriers to adopting summary judgment procedures, compares the English position with the US and International Centre for Settlement of Investment Disputes (ICSID) positions, and proposes an approach to summary judgment procedures that could be adopted by tribunals constituted under the supervisory jurisdiction of the English courts.

This article analyzes 120 federal appellate court opinions filed between 1990 and June 30,1994 in which a plaintiff alleged that age discrimination motivated his or her termination during a reduction in force. Employers prevailed in 63 percent of these cases, either through a pretrial summary judgment award or on the merits. The impact of two recent U.S. Supreme Court opinions on the outcomes of these cases, the plaintiff's limited right to a jury, and the courts' analysis of employers' justifications for terminating plaintiffs are discussed. The article also reviews judicial response to the use of arbitration clauses in employment contracts that preclude litigation of discrimination claims.

We address a longstanding issue in antitrust doctrine: what must a plaintiff adduce at various procedural stages to show an agreement under Sherman Act § 1? Our major goal is to offer the most compelling interpretation and formalization of the Supreme Court’s statements on evidentiary and procedural standards for showing a § 1 violation, while recognizing that, as some have claimed, the Court has addressed the required proof of pleading without a well-articulated definition of agreement or, more narrowly, conspiracy. Our contribution attempts to formalize what we believe is the most reasonable interpretation of the Court’s reigning rules, which now include the one in Twombly. For now we do not offer a normative prescription for those rules based on foundational policy principles, such as promotion of efficiency or minimization of social costs, which include the costs of errors in the decision process. This is not to say that those policy concerns do not motivate the doctrine we are addressing, but rather that here we set ourselves the more limited task of presenting the most plausible and reasonable interpretation of the doctrine and of formalizing it in a way that aids understanding. The primary target of our interpretive task is the Supreme Court’s 2007 decision in Twombly, which is the most recent installment in a line of cases that has addressed the requirements for establishing the existence of an agreement as a matter of substantive antitrust law and civil procedure. We begin by locating Twombly in the context of Sherman Act § 1 jurisprudence that courts have adopted to try to minimize overall expected error costs in deciding conspiracy cases. Then we describe a leading - perhaps the leading - approach that courts have followed in delineating the types of facts a plaintiff relying on circumstantial evidence must adduce to prove her § 1 conspiracy claim, the doctrine commonly know as “plus factors.” This discussion is complemented by an account of how Monsanto and Matsushita together set the standard for how much of that type of evidence such a plaintiff needs to offer to withstand a motion for summary judgment. In these discussions we introduce a conceptual distinction between the type and quantum of proof and argue that it is key to understanding and formalizing the rules announced in the line of cases addressing evidentiary sufficiency of § 1 claims. Consequently, this duality helps us distinguish the issues in Monsanto and Matsushita from the motion to dismiss question addressed in Twombly. We bring these two elements of types of evidence and quantum of evidence together in a description of the way that the circuit courts integrated the consideration of plus factors and the holding in Matsushita into a test the plaintiff must pass at the summary judgment stage. We introduce the notation of Bayesian probability to formalize the tests that have emerged across the circuit courts for § 1 plaintiffs to withstand summary judgment. The case of principal concern, Twombly, then takes center stage as we describe the difference between the District Court’s and the Second Circuit’s analyses of the case, and then take up the argument between the parties at the Supreme Court. Finally, we offer our reading of the Supreme Court’s Twombly decision and propose a formalization of our interpretation again using the notation of Bayesian probability. The latter helps to distinguish our proposed reading of the case’s holding from the settled doctrine around summary judgment. We briefly conclude with remarks on the future of Twombly’s “plausibility” standard and the task of proving horizontal agreements in the future.

The goal of a plaintiff seeking a default judgment in a debt collection suit is to convince the judge that the alleged debt is valid and owed, and therefore there is nothing for the judge to do but enter a judgment in favor of the debt collector. Unfortunately, some debt collectors take it too far. A serious problem arises when questionable tactics are used; in particular, the submission of misleading and deceptive documents in an effort to deceive the court. Although the Fair Debt Collection Practices Act (FDCPA) is meant to protect consumers from deceptive practices of debt collectors, the Seventh Circuit has recently held that the FDCPA does not extend to communications directed at judges. This article examines the background of the FDCPA and its application in the Seventh Circuit's recent decision in O'Rourke v. Palisades Acquisition XVI. It will argue that, contrary to the majority‘s holding in O'Rourke, Section 1692e of the FDCPA should cover communications provided to a judge. The article explains the necessity of a new alternative, the 'sophisticated judge' standard, to cover these types of misleading and deceptive representations. Finally, the article proposes that the 'sophisticated judge' standard could allow judges hearing FDCPA suits to view the issue of deception as a question of law, rather than a question of fact - thus, extrinsic evidence would not be needed to overcome a defendant‘s motion for summary judgment.

The current interbranch tensions in the federal government have been just as potent, if not more so, at the state level. Legislative challenges to state judiciaries are accumulating nationwide. In one state, Tennessee, the newly-elected Republican majority in the General Assembly has flexed its legislative muscle in several ways, ranging from the outright hostile – threatening the imposition of contested elections for the state’s appellate judges and a takeover of the body that governs judicial conduct – to the more sublime. A less-publicized, but no less significant, step that the legislature took in 2011 was to overrule a recent decision of the Tennessee Supreme Court, Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), which had explicitly rejected the federal Celotex standard for burden-shifting on a motion for summary judgment. Hannan had simply reaffirmed a decade-old line of cases, but was characterized by the dissenting justice and, subsequently, by the defense bar, as a radical change in Tennessee law. Thus, it became a prime target of the business-oriented General Assembly. This article explores the role of summary judgment in the current showdown between the legislative and judicial branches in Tennessee. After briefly tracing the history of the Celotex standard in Tennessee, including the background underlying the Hannan decision, the article considers the constitutionality of the legislation in light of the explicit separation of powers provision in the Tennessee Constitution and cases interpreting it. It also examines whether the new law exceeds the General Assembly’s statutory rule-making powers. The article concludes by revisiting the larger context of the interbranch battle, most notably the legislature’s ongoing threat to institute contested judicial elections in lieu of the current “Tennessee Plan,” which calls for appointment by the Governor and “yes-no” retention elections rather than contested elections. Because the courts will eventually have to decide the constitutionality of the statute overruling Hannan, the threat of contested elections could be characterized as a weapon supporting the General Assembly’s move to usurp the judiciary’s traditional power to promulgate its own rules of practice and procedure.

In many settings, there are preliminary or interim decision points at which legal cases may be terminated: e.g., motions to dismiss and for summary judgment in U.S. civil litigation, grand jury decisions in criminal cases, and agencies’ screening and other exercises of discretion in pursuing investigations. This article analyzes how the decision whether to continue versus terminate should optimally be made when (A) proceeding to the next stage generates further information but at a cost to both the defendant and the government and (B) the prospect of going forward, and ultimately imposing sanctions, deters harmful acts and also chills desirable behavior. This subject involves a mechanism design analogue to the standard value of information problem, one that proves to be qualitatively different and notably more complex. Numerous factors enter into the optimal decision rule – some expected, some subtle, and some counterintuitive. The optimal rule for initial or intermediate stages is also qualitatively different from that for assigning liability at the final stage of adjudication.

This paper responds to comments regarding the Federal Judicial Center’s recent studies of the resolution of motions to dismiss for failure to state a claim. Those studies, undertaken at the request of the Judicial Conference Advisory Committee on Civil Rules, found a statistically significant increase in the rate at which defendants file motions to dismiss following the Supreme Court decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. The studies also found no statistically significant increase in the rate of grants of motions to dismiss without leave to amend, except in cases involving challenges to financial instruments such as mortgages, and no statistically significant increase in cases terminated by such motions. Several scholars have expressed reservations regarding these findings and raised a number of specific issues regarding the research. This paper responds to the following issues:• Professor Hoffman’s concerns about our use of statistical analysis in general, and the use of multinomial statistical models in particular;• Professor Moore’s concerns about the exclusion from our study of pro se cases and cases asserting affirmative defenses, and the findings of her most recent study of the outcome of motions to dismiss;• Professor Brescia’s recent study finding an increase in grant rate of motions to dismiss in employment and housing discrimination cases; and • Professor Gelbach’s incorporation of our findings into an economic model of pretrial litigation that attempts to estimate the overall effect on settlement and access to discovery.I continue to believe that our findings represent the most accurate statement of the federal district courts’ response to these Supreme Court decisions, but acknowledge that this response has continued to evolve since we conducted our study. I propose a study of all dispositive motions that will, among other things, examine the interaction between motions to dismiss for failure to state a claim and motions for summary judgment.

Professor Suja Thomas has famously asserted that summary judgment violates the Seventh Amendment guarantee of a right to a jury trial in civil cases. Most commentators and courts, however, continue to believe that summary judgment is constitutional and that the issue was resolved by the Supreme Court in Fidelity & Deposit Co. v. United States. This Article argues that this entire debate is misguided. The current debate has proceeded under the assumption that every summary judgment raises identical Seventh Amendment concerns. The reality, however, is more complex. This Article distinguishes between the concepts of probability and confidence, both of which can be the basis of a summary judgment. When summary judgment is entered pursuant to a confidence analysis, no Seventh Amendment violation occurs. This conclusion is confirmed by existing Supreme Court case law. When, however, summary judgment is entered pursuant to a probability analysis, Seventh Amendment concerns arise; contrary to popular believe, the Supreme Court has not addressed these Seventh Amendment concerns.

The modern summary judgment standard requires that a judge consider how a "reasonable jury" would resolve a particular dispute. By creating the impression that a judge's analysis at summary judgment replicates that of a jury at trial, the "reasonable jury" standard masks a component of the judge's summary judgment analysis. To appreciate this concept, it is necessary to distinguish between the concepts of probability and confidence. Whereas a jury primarily -- if not exclusively -- engages in a probability analysis, a judge performs both a probability and confidence analysis. This article discusses the dual nature of a judge's summary judgment inquiry through a reconsideration of Professor Tribe's "blue bus" hypothetical. In addition, this article demonstrates how the "reasonable jury" standard makes it difficult to identify the confidence concept as a component of federal procedure.

Legal and factual issues regarding franchisor liability pose challenges for the legal community. This is an article about courts striving to fashion the law of franchisor liability for franchisee torts, an area of the law with serious and unsettled issues. It discusses how courts seek guidance from respondeat superior and apparent agency doctrines in determining the principles of franchisor vicarious liability. Much of the discussion is based on case law and Restatement (Third) of Agency. Estoppel and direct liability principles are also considered. This article examines a number of cases that illustrate questionable factual determinations in granting summary judgments favorable to franchisors, thereby denying trials to injured parties. It also reviews some cases illustrating better approaches to factual determinations. Since summary judgments should be granted only in the absence of material facts at issue, erroneous fact-finding seriously undermines the judicial process.The formulation of the law of franchisor liability is especially important because of its potential to encourage franchisors to promote better health and safety practices to benefit franchisee patrons and the general public.

The twenty-fifth anniversary of the Supreme Court’s famous summary judgment trilogy in 1986 offers an opportunity to assess the impact of this trilogy on federal practice. This study sets out to answer a few relatively simple questions: are federal courts doing anything more than citing Celotex as the leading Rule 56 precedent, and if so, are they indeed following the analytical burden-shifting framework so carefully and elaborately set out by Justices Rehnquist and Brennan? A sub-textual inquiry was: do federal judges understand Celotex, any more than our largely confused and confounded first year law students? In addition, this study also researched the extent to which the trilogy’s second leg ― Anderson v. Liberty Lobby, Inc. ― has resulted in numerous trial-by-affidavit nightmares suggested by Justice Brennan in his dissent. The results of this study seem to suggest that in a surprising number of summary judgment cases, federal courts don’t even cite Celotex. If this were not shocking enough, in the remaining universe of decisions where courts do cite Celotex, some federal judges do not seem to acknowledge, understand, or apply the elaborate Celotex conceptual framework. The data also seem to suggest that in at least many cases, federal judges ― as they did pre-Celotex ― continue to decide summary judgment motions on a kind-of gestalt “tennis match” mode of analysis. The various FJC studies of post-trilogy summary judgment practice have demonstrated that the disposition rates (that is, favorable grants of summary judgment motions) have not increased in statistically significant ways in the aftermath of the trilogy. Along with the FJC studies, this very modest study further suggests that the trilogy’s central Celotex decision likewise has had small impact on the ways in which judges analyze and decide summary judgment motions. In addition, the Anderson decision’s core evidentiary holding has been replicated in exactly three other somewhat anomalous contexts, in the past 25 years ― clearly averting any substantial judicial crisis. Surveying these realities, it is difficult not to conclude that the Court’s summary judgment trilogy, along with its attendant hype, has been much ado about very little. Against this backdrop, practitioners who must file summary judgment motions may take some comfort in realizing that in most instances in federal court, at least, the lawyers need not overly fret over shifting burdens of production, persuasion, and proof, so long as the attorneys proffer something in the record for a judge to consider (except in those outlying federal courts that have chosen to dun attorneys who do not point to the specific evidence). And while some erudite judges on the federal bench may justifiably take pride in wending their way through a recitation and application of the Celotex standards, judges also may take comfort in knowing that they also largely will not be dunned by appellate courts for failure to recite or properly apply Celotex.

Ss expressed their moment-to-moment feelings about a target on a computer screen. In the 1 st study, the target was a positive, negative, or mixed-valence acquaintance; in the 2nd study, the target was a liked versus disliked acquaintance who committed a positive versus negative act. Several dynamic measures were derived from the positioning of the cursor (sampled 10 times per second) over a 2min period. The dimension of the structure underlying the observed dynamics was also assessed. Both sets of measures varied meaningfully across targets (e.g., feelings changed at a relatively fast and unstable rate for mixed-valence targets) and were correlated with self-report measures (e.g., instability in rate of movement was associated with self-reported uncertainty in feelings). Discussion centers on the viability and usefulness of framing social judgment in terms of dynamical systems concepts and principles. Social judgment is a broad category, encompassing such distinct phenomena as causal attribution, impression formation, prejudice, and moral evaluation (cf. Eiser, 1990; Fiske & Taylor, 1991; Zebrowitz, 1990). Although each of these judgmental phenomena is associated with its own purported cognitive and emotional processes, collectively they share a critical assumption concerning stability and the basis for change in the output of their respective processes. The assumption is that once a judgment is formed, it is stable unless it is updated by new information or challenged by social influence. By implication, if a person experienced neither pressure nor new information, and if measurement error could be eliminated by directly accessing the contents of the person's mind, the person's summary judgment concerning a target would stand still and could be characterized as a single point on an appropriately labeled scale. Our aim in this article is to provide support for a different perspective on the nature of stability and change in social judgment. In particular, we suggest that under some conditions the output of social judgment is inherently dynamic rather than stable. The dynamics of judgment, moreover, are generated by internal mechanisms—specifically, the interaction of elements in the judgment system—and thus can occur in the absence of ex

In this article, policy capturing was used to examine how lawyers, as experts, understand the wording in employee handbook passages that promise procedural protections for employees. Specifically, how the wording of employee handbook passages can create both legal and nonlegal obligations was examined. Forty-six lawyers were asked to make the following judgments: whether the handbook passage constituted a legal or moral obligation and the chances of the employer winning or being granted a summary judgment in a wrongful discharge suit. Five aspects of the handbook passages were examined: verb strength, specificity, contract disclaimers, legalistic jargon, and the employee's signature.

This article criticizes the Tellabs standard for scienter pleading under federal securities law on the ground that it weeds out too many non‐frivolous cases. The article proposes a procedure designed to rectify the problem. Under the tentative dismissal approach, a dismissal under Tellabs would not end the litigation if the plaintiff filed an objection to the decision. Instead, the plaintiff would be required to pay the defendant’s attorneys’ fees incurred between the judge’s ruling on the motion to dismiss and the resolution of a motion for summary judgment.

This article focuses on the growing problem that has arisen with the procedural tool of summary judgment; it tempts judges to take over jury trials, a violation of the constitutional right to trial by jury. The summary judgment phenomenon has been described as the beginning of the "vanishing trial." Recent data from the Federal Judicial Center shows that summary judgment in favor of the plaintiff is granted in an estimated seventy percent of all federal civil rights and employment discrimination cases. However, the nature of a claim for these types of violations is unsuitable for summary judgment because a greater record is needed to develop a resolution to these complex issues.More specifically, civil rights cases that allege discrimination normally require an evaluation of the material facts of motive and intent. This article analyzes the case of Goring v. Board of Supervisors of Louisiana State University, decided in the Middle District of Louisiana in 2010, to demonstrated the problems discussed above.

There is an age-old conflict between traditional copyright industries and new distributive technologies. The conflict stems from abilities to copy and easily distribute protected works. As the cost of copying decreases and ease of access to copyrighted works increases, copyright industries continually lobby for stronger rights. With the emergence of the Internet and software that allows fast and easy duplication of content, copyright owners and Internet service providers lobbied for new legislation governing the use of such software, resulting in the Digital Millennium Copyright Act of 1998 (“DMCA”). In June of 2010, this piece of legislation played a central role in the outcome of litigation between Viacom, a copyright and television giant, and Youtube, the most popular source of online videos in the world. Youtube, the defendants, filed for summary judgment on the issue of “safe harbor” protection under Section 512(c) of the DMCA. The court, therefore, had to limit its discussion to whether or not Youtube met the requirements for protection under the DMCA’s 512(c) safe harbor for online service providers with “Information residing on systems or networks at the direction of users.” What this paper posits is that the court can and should deny summary judgment on the issue of 512(c) and move on to an in depth common law analysis, potentially resorting to the Sony Doctrine. While other commentators have recognized that a Sony analysis is the a proper analysis in the Viacom case, this paper will explain how the court can get to such an analysis and why such an analysis would be more beneficial than a 512(c) analysis.

In Swierkiewicz, in 2002 the Supreme Court reiterated that heightened pleading standards could be achieved only through Congressional action or via the Rules Enabling Act but not by judicial interpretation. Yet, in 2007 and 2009 in the Twombly and Iqbal decisions respectively the Supreme Court announced that the allegations in a civil complaint had to be plausible in order to survive a motion to dismiss. As a result, the Supreme Court goes to great judicial efforts to assure plausibility is not a heightened pleading standard and that it is consistent with the pleading standard reaffirmed in Swierkiewicz. However, a careful comparison of the pleadings in the Swierkiewicz decision with the plausibility standard clearly establishes that plausibility entails impermissible, heightened pleading standards. The Supreme Court also assures that plausibility analysis is not probability analysis but it is obvious that plausibility determinations are in fact Bayesian probability analyses. Because Bayesian probability analysis involves incorporation of new data in assessing an event’s plausibility based on that event’s previously established relationships with other observed events, plausibility analysis is suitable for post-discovery motions such as summary judgment but it is wholly unsuited for the pleading stage of litigation. The plausibility standard therefore represents a significant normative shift in the Supreme Court’s jurisprudence. The first prong of the plausibility test, which involves separating law from fact, is also widely acknowledged as an impossible feat. Plausibility, stripped of the raiment of meaningless and unsustainable judicial descriptions, is also indistinguishable from a constitutionally prohibited, judicial credibility determination. Finally, plausibility wreaks havoc on fundamental tenets of statutory interpretation because it results in a nonsensical, overlapping, functional amalgam of Federal Rules of Civil Procedure 8, 9(b), 11 and 12. Despite the aforementioned structural defects, recent scholarship attempts to salvage the plausibility standard by equating it with empathic judging but modern neuro-scientific research dispels this view and demonstrates empathic capacity in human beings is bio-genetically biased based on race as a result of evolutionary strategies for survival. Because it is so unsupportable it may be that plausibility is a wholly imagined procedural substitute for the following three frightening substantive possibilities the Court needed to dodge in Iqbal at all costs: Korematsu is still good law; the federal courts are inept at dealing with matters of war; and the Constitution cannot realistically apply to all situations involving national security.

Let me begin by declaring two limitations on what I intend to discuss. Both arise from the fact that the paper is based entirely on my own experience as counsel and a judge. The first point is that when I speak of recent changes, I mean what has happened over the last twenty-five years or so, since the late 1960s, which happens to be when I came to the Bar. Secondly, I shall speak principally of actions in the Chancery Division. I doubt whether things are very different in the Commercial Court, but I can say nothing of, for example, personal injury litigation or procedure in the County Court. Twenty years ago, English civil procedure could be said to have the following salient characteristics. First, it was intended to enable the parties to obtain a decision on disputed questions of legal right. In other words, it was devised for deciding bona fide disputes. Second, the centre piece of the system was the trial. This meant a continuous session, sometimes contained within a single day, sometimes lasting many days, at which the parties would confront each other, call their witnesses, test their opponent's evidence by cross-examination, make their submissions and receive judgment. Third (and this is a corollary of the last feature), the earlier procedural stages such as pleadings, discovery and interlocutory applications were ancillary to the ultimate trial and judgment. Their purpose was first, to enable the trial to be conducted as efficiently and economically as possible and second, to enable the judgment to be as effective as possible. Fourth, the proceedings were largely oral. The rules for the written elements of the procedure pleadings, affidavits, interrogatories emphasised the need for brevity. The rules said that pleadings are to be succinct and affidavits should not be prolix. But they said nothing about limits on oral evidence or submissions: these were open-ended, subject only to the general discretion of the court. Let me now examine the extent to which these characteristics have changed. First, the procedure as a method for deciding bona fide disputes. The bulk of the Rules in the White Book, so far as they apply to ordinary civil proceedings, are designed to enable the issues to be defined, the parties to prepare for trial and the trial to take place in an orderly and effective manner. Clearly, none of this makes any sense in a case in which there is no real dispute and the plaintiff only wants access to the coercive power of the state in order to enforce his undoubted rights. Until quite recently, the only way in which it was possible to short-circuit the procedure and go straight to judgment without pleadings or trial was by application for summary judgment under RSC Ord 14 or RSC Ord 86. In recent years, however, this remedy has been shown to be in various respects inadequate. First, let me consider those cases for which RSC Ord 14 was primarily designed, namely the money claim in a liquidated amount, where the defendant is delaying payment to improve his cash flow or because he is in fact unable to pay his debts but wants to stave off liquidation or bankruptcy. There are symptoms to suggest that, in this kind of case, the paradigm RSC Ord 14 case, the system is not working adequately. These symptoms consist in an increase in the number of cases in which companies deny that they owe money which the creditor claims is indisputably due

In February 1993, Judge Charles R. Richey of the United States District Court issued a summary judgment in the case of Animal Legal Defense Fund, et al. v. The Secretary of Agriculture, et al. The decision, which was in favor of the Animal Legal Defense Fund, requires the U.S. Department of Agriculture to withdraw its current regulations governing exercise for dogs and the psychological well-being of nonhuman primates used for biomedical research and to issue new regulations containing only minimum, measurable standards. Both plaintiffs and defendants contended that they were seeking the best interests of the laboratory animals. The issue at stake is whether animals are better protected if the government establishes limited minimal standards or is allowed to require institutions to provide additional standards, which will be judged on the basis of their effectiveness in maintaining healthy animals. The Court avoided this dispute, however, by placing primary emphasis on applying the Administrative Procedures Act and stating that it was merely interpreting the "plain meaning" of the Animal Welfare Act, as amended. In this article, arguments are presented for interpreting the law in a far more flexible way than Judge Richey did. The conclusion is also reached that there were no winners in the Animal Legal Defense Fund case and that the real losers are the laboratory animals.

In the main the professional critic today has but one recourse with respect to a dance event: to dispose of it. Within an allotted space and for a deadline, he is required to state what the event was and what it amounted to, without reservation or qualification. Dance criticism therefore tends to take on the nature of this function: capsule descriptions, the precise and cutting phrase, swift appraisals, the neat and summary judgment.

On 2 June 2014, the US Supreme Court unanimously overturned the long-standing jurisprudence of the US Court of Appeals for the Federal Circuit regarding the standard for evaluating a patent claim's definiteness under 35 USC §112, ¶2, and established a new ‘reasonable certainty’ standard that patent claims must satisfy. Legal Context 35 USC § 112(2), requires a patent specification to ‘conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as [the] invention’. Before the Supreme Court's decision in Nautilus, the Federal Circuit applied an ‘insolubly ambiguous’ standard of review for determining whether a claim was indefinite under 35 USC § 112, ¶2: ‘[i]f a claim is insolubly ambiguous, and no narrowing construction can properly be adopted’, then the district court should find the claim to be indefinite. However, ‘[i]f the meaning of the claim is discernible, even though the task may be formidable and the conclusion may be one over which reasonable persons will disagree’, the claim should be held to be ‘sufficiently clear to avoid invalidity on indefiniteness grounds’. Exxon Research & Eng?g Co v United States, 265 F3d 1371, 1375 (Fed Cir 2001). Thus Exxon Research made clear that claims should be construed to preserve validity, and that as long as the claims are ‘amenable to construction’, they should be deemed definite in a patent invalidity determination. In Nautilus, the Supreme Court considered and rejected this rule. Amster, Rothstein & Ebenstein LLP / 90 Park Avenue, New York, New York 10016 / www.ARElaw.com © Copyright Amster, Rothstein & Ebenstien LLP. All rights reserved. Facts In 2004, Biosig filed suit against Nautilus in the US District Court for the Southern District of New York. Biosig sought judgment against Nautilus for infringing Biosig's US Patent No 5,337,753 (the ‘753 patent’). Nautilus moved for summary judgment, arguing that the claim limitation, ‘spaced relationship’, was indefinite under § 112, ¶2. The district court found that claim limitation to be indefinite. The Federal Circuit reversed the district court's decision. The Federal Circuit applied the ‘insolubly ambiguous’ standard as crafted in Exxon Research, and found the claim limitation to be definite and ‘amendable to construction’. The Supreme Court granted certiorari. Analysis Justice Ginsburg delivered the unanimous opinion of the Supreme Court in Nautilus, which held that the Federal Circuit's ‘insoluble ambiguity’ test ‘breed[s] lower court confusion’. The court reasoned that ‘[t]o tolerate imprecision just short of that rendering a claim “insolubly ambiguous” would diminish the definiteness requirement's public-notice function and foster the innovation-discouraging “zone of uncertainty”’. In place of the ‘insolubly ambiguous’ standard, the court clarified that [A] patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention (ibid, 1). The court reasoned that § 112 ‘entails a delicate balance’ between the ambiguity of the ‘inherent limitations of language’ and the ‘zone of uncertainty which enterprise and experimentation may enter only at the risk of infringement claims’. In assessing these ‘concerns that tug in opposite directions’, the court expressed the principle that ‘[t]he definiteness requirement, so understood, mandates clarity’. Moreover, ‘[i]t cannot be sufficient that a court can ascribe some meaning to a patent's claims; the definiteness inquiry trains on the understanding of a skilled artisan at the time of the patent application, not that of a court viewing matters post hoc’. Thus Nautilus reversed the Federal Circuit's ‘insolubly ambiguous’ standard to determine whether a claim is definite under § 112, ¶2 in favour of a ‘reasonable certainty’ analysis. Under the new analysis, a patent claim is indefinite if it does not inform those skilled in the art of the field of the invention with ‘reasonable certainty’. The court further clarified that the evaluation should entail ‘the necessarily sophisticated analysis of the whole document’. Amster, Rothstein & Ebenstein LLP / 90 Park Avenue, New York, New York 10016 / www.ARElaw.com © Copyright Amster, Rothstein & Ebenstien LLP. All rights reserved. In addition to establishing a new standard for claim definiteness evaluation, the court in Nautilus noted that two issues ‘subsidiary to the ultimate issue of definiteness’ remain: (1) ‘whether factual findings ... trigger the clear-and-convincing evidence standard’; and (2) ‘whether deference is due to the PTO's resolution of disputed issues of fact’. These issues have been left for another day. Practical Significance Nautilus, at least arguably, lowers the requirement to establish indefiniteness of a patent claim under 35 USC § 112, ¶2 by replacing the Federal Circuit ‘insolubly ambiguous’ standard with a ‘reasonable certainty’ test. Shortly after Nautilus issued, numerous courts reopened briefing on questions regarding claim definiteness in view of the new test. Whether Nautilus results in more claims being found indefinite, only time will tell. Charles Macedo is a partner and Reena Jain is an associate at Amster, Rothstein & Ebenstein LLP. Their practice specializes in intellectual property issues including litigating patent, copyright, trademark, and other intellectual property disputes. They may be reached at cmacedo@arelaw.com , and rjain@arelaw.com. Powered by TCPDF (www.tcpdf.org) Amster, Rothstein & Ebenstein LLP / 90 Park Avenue, New York, New York 10016 / www.ARElaw.com © Copyright Amster, Rothstein & Ebenstien LLP. All rights reserved.

On 29 April 2014 the US Supreme Court issued two companion decisions which overturned the long-standing jurisprudence of the US Court of Appeals for the Federal Circuit (‘Federal Circuit’) regarding the standard for awarding attorney fees under 35 USC 285 and the deference given to the district court judge in making such a determination for patent cases. Legal context Section 285 provides that the district court ‘may’ award attorney fees in ‘exceptional’ patent cases. Prior to the Supreme Court's decisions in Octane and Highmark, the Federal Circuit set forth the standards for awarding section 285 attorney fees in Brooks Furniture Mfg, Inc v Dutailier Int?l, Inc, 393 F3d 1378 (Fed Cir 2005). Brooks Furniture held, at 1381, that ‘[a] case may be deemed exceptional where there has been some material inappropriate conduct related to the matter in litigation’ and ‘[a]bsent misconduct in conduct of the litigation or in securing the patent, sanctions may be imposed against the patentee only if both (i) the litigation is brought in subjective bad faith, and (ii) the litigation is objectively baseless’. Brooks Furniture applied the Supreme Court standard from Professional Real Estate Investors, Inc v Columbia Pictures Industries, Inc, 508 US 49 (1993) (‘PRE’), to section 285. The Supreme Court in PRE held, at 60–61, that to qualify as a ‘sham’ litigation in the context of antitrust liability, ‘the lawsuit must be objectively baseless’ and must ‘conceal ... an attempt to interfere directly with the business relationships of a competitor’. Additionally, the Federal Circuit in Brooks Furniture held that the question of whether section 285 attorney fees are appropriate is one to be reviewed de novo. Amster, Rothstein & Ebenstein LLP / 90 Park Avenue, New York, New York 10016 / www.ARElaw.com © Copyright Amster, Rothstein & Ebenstien LLP. All rights reserved. Facts In 2003 Highmark filed suit against Allcare in the US District Court for the Northern District of Texas. Highmark sought a declaratory judgment that Allcare's patent was invalid and not infringed. Allcare counterclaimed, alleging infringement. The district court found that the patent had not been infringed, and the Federal Circuit affirmed. The district court also granted attorney fees under section 285. The Federal Circuit affirmed in part and reversed in part, and, in doing so, applied a de novo standard of review. In April 2008, ICON filed suit against Octane in the US District Court for the Central District of California, alleging patent infringement. The case was transferred to the US District Court for the District of Minnesota. Octane moved for summary judgment for non-infringement. The district court found that the patent had not been infringed but refused to award attorney fees under section 285, reasoning that Octane did not meet the standard set forth in Brooks Furniture. The Federal Circuit affirmed. The Supreme Court granted certiorari in both cases. Analysis Justice Sotomayor delivered the unanimous opinions of the Court for both Octane and Highmark. Justice Scalia did not join for footnotes 1–3 in Octane. The Octane decision In Octane the Supreme Court rejected the standard established by the Federal Circuit in Brooks Furniture, determining the Brooks Furniture standard to be ‘overly rigid’. The Supreme Court reasoned, at 1758, that Brooks Furniture ‘appear[s] to render § 285 largely superfluous’ because of its high standard, and rejected the requirement that entitlement to fees under § 285 be demonstrated by ‘clear and convincing evidence’. To determine the circumstances where attorney fees should be awarded, the Supreme Court simply turned to the text of section 285, which reads as follows: The court in exceptional cases may award reasonable attorney fees to the prevailing party. The Supreme Court reasoned, at 1756, that the ordinary meaning of ‘exceptional’, both when Congress first enacted the statute and today, is ‘uncommon’, ‘rare’ or ‘not ordinary’. Accordingly ‘an “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable matter in which the case was litigated’. The ‘[d]istrict courts may determine whether a case is “exceptional” in the case-by-case exercise Amster, Rothstein & Ebenstein LLP / 90 Park Avenue, New York, New York 10016 / www.ARElaw.com © Copyright Amster, Rothstein & Ebenstien LLP. All rights reserved. of their discretion, considering the totality of the circumstances’. The Supreme Court reversed the Federal Circuit's application of a two-part test to determine whether a case was ‘exceptional’ under section 285, in favour of a factor analysis. The factors to consider, at 1756 n 6, include ‘frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance compensation and deterrence’. The Highmark decision In Highmark, the Supreme Court relied on and built upon its decision in Octane to find ‘that an appellate court should review all aspects of a district court's §285 determination for abuse of discretion’, which gives greater deference to the district court, instead of conducting a de novo review. Both cases were sent back to the lower court for reconsideration. Subsequent decision A week after Octane and Highmark, the Supreme Court, in light of the two decisions, granted certiorari, vacated and remanded a Federal Circuit decision which had overturned a $6,6 million attorney fee award: Kobe Props Sarl v Checkpoint Sys, Inc, 2014 US LEXIS 3286 (US 5 May 2014). Practical significance We submitted two identical amicus submissions for each case to the Supreme Court on behalf of the New York Intellectual Property Law Association in Octane and Highmark. In the amicus submissions, we raised numerous concerns regarding the collapse of the two-part test applied by the Federal Circuit into a single ‘exceptional’ case test as the court has now adopted. In particular, we raised concerns about increased satellite litigation over fee motions, forum shopping and lack of predictability of the award of fees. In fact, the same day these companion decisions were issued, defendants with a pending motion for attorney fees before the Southern District of New York informed the court of the new, broader standard for determining an ‘exceptional’ case: see Realtime Data, LLC v CME Group Inc, Case Nos 1:11-cv-6697 (KBF), 1:11-CV-6699 (KBF) and 1:11-cv-6702 (KBF) (SDNY). The Octane and Highmark decisions by the Supreme Court may make it easier for prevailing parties (both successful patentees and wrongfully accused infringers alike) to obtain attorney fees in ‘exceptional’ patent cases. By removing yet another ‘bright-line’ rule set forth by the Federal Circuit, the Supreme Court, by way of its decisions in Octane and Highmark, has removed certainty in favour of what it deems a ‘fairer’ rule. Amster, Rothstein & Ebenstein LLP / 90 Park Avenue, New York, New York 10016 / www.ARElaw.com © Copyright Amster, Rothstein & Ebenstien LLP. All rights reserved. Charles R. Macedo is a partner and Reena Jain is an associate at Amster, Rothstein & Ebenstein LLP. Their practice specializes in intellectual property issues including litigating patent, copyright, trademark, and other intellectual property disputes. They may be reached at cmacedo@arelaw.com and rjain@arelaw.com. Mr Macedo is also the author of The Corporate Insider's Guide to US Patent Practice, and, as Co-Chair of Amicus Briefs Committee and Counsel of Record, submitted amicus briefs on behalf of the New York Intellectual Property Law Association in support of neither party in both cases. Powered by TCPDF (www.tcpdf.org) Amster, Rothstein & Ebenstein LLP / 90 Park Avenue, New York, New York 10016 / www.ARElaw.com © Copyright Amster, Rothstein & Ebenstien LLP. All rights reserved.

M suits! Trial lawyers! Judgment awards! There is nothing more unsettling to a physician than the thought of a lawsuit and the potential for loss of one’s possessions and income. Physicians dread an attack on their abilities, their reputations, and their selfesteem. They worry about the Physicians Data Bank. They view with fear a courtroom appearance. No wonder that physicians avoid learning how to protect themselves in these situations! By studying the subject of malpractice, fear can be dispelled and replaced by knowledge and the ability to better protect oneself. That is the purpose of this discussion. It is important for physicians to realize how and why malpractice suits get started. Once started, the physician needs to know what to do and how to react to prevail against his opponents. He needs to know how to effectively testify. Discussion will follow on these subjects. The most important thing a physician needs to know is that most malpractice suits do not cause him monetary loss at all, even if he is found guilty of malpractice. This is because about 95% of all malpractice cases do not go to trial. Frivolous lawsuits and those without merit are often dropped. This is because trial lawyers may well spend $50,000 on a case before it ever gets into a courtroom. They do not want to utilize their resources on a case with little chance of return on their investment. In a case with no real merit, the defense attorney may ask for a “summary judgment,” which if granted, will dismiss the suit. Of those cases which go on, 95% are settled before trial. This is because the plaintiff lawyer is assured of at least some money, while the defense lawyer has avoided a possibly large jury award. Of the remaining 5% of cases, juries favor the physician in 60% to 80% of verdicts. This means that only 1% to 2% of cases will lead to a loss at trial. In my experience, most verdicts are for monetary amounts within the limits of the physicians malpractice policy. The same is true for settlement amounts. Consequently, only a tiny percent of cases may be for an amount in excess of insurance—no doubt less than 1 case in a 100! On appeal, the award is often decreased to within policy limits. The bottom line is that rarely is a doctor required to pay an award out of his own pocket! In 15 years, I have yet to find a case in which a physician had to pay from his personal resources. Why do patients sue their doctors? A well-known maxim in legal circles “friends don’t sue friends.” My experience has shown me that if the patient likes his physician and respects his ability, he is unlikely to sue even if an error has been made and the error is well known to the patient. Plaintiff lawyers have affirmed this to me more than once. On the other hand, I recently had a case in which the cardiologist found himself too busy to take the time to explain to the grieving relatives why the patient died. In addition, the cardiologist was described as arrogant, rude, and hurried. The relatives sued even though they weren’t sure malpractice occurred. They merely wanted information. A little time with the relatives would have saved hours of subsequent unpleasantness, not to mention many hours of work time lost. I recently had a case of an uninsured retired patient with severe pneumonia and chronic obstructive lung disease. The patient spent 18 days on a ventilator. The patient nearly died but the pulmonologist saved her life. The bill was enormous. The patient had a decubitus ulcer. The patient sued. Large bills and no insurance may well lead to a lawsuit that would otherwise not have occurred. Another case involved a fireman who developed severe angina while fighting a fire, leading to hospitalization and bypass surgery. He also was uninsured. Workman’s compensation did not cover him because he had angina, not an infarct on the job; therefore, he had no actual injury fighting the fire. Because he needed $28,000 to pay his medical bills, he sued the company having the fire, maintaining that if they had better fire precautions, the fire would not have happened and he would not have required bypass surgery! The doctor prevailed in this groundless claim generated again by large debts and no insurance. In addition to suits arising from bad results, lack of money to pay for medical bills, or hostility to the physician, there are those who sue for money alone. I have been involved in numerous cases in which the patient, with multiple severe diseases, died despite excellent treatment. The relatives sue because they see an opportunity to make a lot of money from a perceived wealthy physician who has insurance. A good plaintiff lawyer will turn down such cases born of desire to “enter the lottery” and make a quick profit. Unfortunately, some overzealous plaintiff expert physicians will convince the trial lawyer to sue in a case with no real merit. It is here that a good defense expert can be of real help clarifying the issues for the jury. Occasionally, I do find a case where genuine malpractice has occurred. A local attorney on television admonishes patients to sue because the doctor has insurance. “That’s why doctors have insurance” she admonishes. She is correct! A corollary of this is that doctors need insurance. Adequate, but not excessive, insurance is a necessary business expense. To “go bare” risks loss of personal savings, whereas a huge insurance limit will actually invite likelihood of a From the Skinner Clinic, San Antonio, Texas. Mananuscript received and accepted January 15, 2001. Address for reprints: Charles H. Beckmann, MD, Skinner Clinic, 124 Dallas Street, San Antonio, Texas 78205.

This paper begins by briefly reviewing statutory provisions that determine initial copyright ownership, govern title transfers, establish requisites to infringement litigation, and bar untimely suits.It then examines Billy-Bob Teeth and Jules Jordan Video and explains how, in the latter case, the Ninth Circuit applied rationales adopted by the Seventh Circuit in the former case to overturn a JMOL unfavorable to an "adult film" star.The third part of the paper reviews use of the copyright statute of limitations to resolve competing ownership claims.The last part of the paper, flagging important differences between § 201(b) and § 204(a), explains why one approach used by the Seventh Circuit to clear title was inappropriately applied by the Ninth Circuit. It concludes that, had the copyright statute of limitations been pled in the later case, the opportunity to misapply § 204(a) should not have arisen. Summary judgment would have been warranted on § 507(b), and that would have made it unnecessary for the Ninth Circuit to offer three alternative ways to extricate a copyright owner from the horns of a dilemma.A version of the paper, citing later copyright and patent opinions refusing acceptance of nunc pro tunc agreements, is published in 9 U.N.H. L.Rev. 409 (2011).

In January 2010, an en banc 11th Circuit court held that a female employee who was surrounded by persistent and graphic sexual speech and derogatory term usage in the workplace, but not directed toward her and who lost no tangible job benefits, nonetheless provided a basis to resist a summary judgment motion. The court compared the situation to one of an African American being subjected to derogatory racial terms in the workplace. But is the comparison an apt one?

This article is a criticism of the "Paradigm Shift in No-Fault 'Serious Injury' Litigation" by Joseph D. Nohavicka which concluded that the lower courts of New York were charged with removing fraudulent serious injury cases from the court system pursuant to the Court of Appeal’s Decision in Pommells v. Perez, 4 N.Y.3d 566 (2005). His article argues that the Pommells decision elaborates longstanding guidelines mandated by the Court of Appeals, clarifying the burdens on a plaintiff seeking to defeat summary judgment where there is a gap or cessation of treatment or sufficient proof in support of the motion establishing a pre-existing condition as the cause of plaintiff’s injuries. No duty is placed on trial courts to determine fraud in the summary judgment context.

This essay provides an overview of symposium articles on The Future of Summary Judgment that were submitted in connection with the Section on Litigation’s program on summary judgment at the 2010 Annual Meeting of the Association of American Law Schools. Contributions to the symposium by Professors Edward Brunet, Stephen Burbank, Jeffrey Cooper, Steven Gensler, and Linda Mullenix explore issues regarding (1) amendments to Federal Rule 56 that are set to take effect on December 1, 2010; (2) emerging safeguards to prevent improvident grant of summary judgment; (3) the potential of summary judgment to impact interrelated aspects of the pretrial process, including the 12(b)(6) motion to dismiss and class action litigation; and (4) the future of the federal standard for summary judgment in diversity cases. Although the articles explore a wide range of issues relating to summary judgment, a dominant subtext is the interplay between summary judgment and federal rulemaking, including the impact of federal rulemaking on summary judgment, the effect of the transsubstantive assumption of the Rules Enabling Act, and the limits of the substantive rights prohibition of the Rules Enabling Act. The essay discusses also (1) how failure to amend Rule 56, absent consensus, leads to substantial variation in summary judgment practice in the federal courts because federal rulemakers respond to lack of consensus by abandoning proposed Rule change or by providing broad discretion to trial judges regarding normative decisions; and (2) how the justices’ views on the importance of uniform application of Federal Rules in diversity cases led to the splintered decisions in the Supreme Court’s recent Erie decision, Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co.

Zhang Shi 張栻 (1133–1180; also known by his courtesy names Jingfu 敬夫 or Qinfu 欽夫, as well as his literary name Nanxuan or Nanxian 南軒) was an important Song thinker who continued the philosophical tradition of Cheng Hao and Hu Hong, and maintained significant intellectual exchanges with ZHu Xi for almost two decades. Moreover, Zhang was one of the few twelfth-century philosophers to be included with ZHu Xi in the official 1345 Song History(Song shi 宋史) special category of “learning of the way” (daoxue 道學) Confucians, which had already in 1241 attained special endorsement as orthodoxy by the Southern Song government. A longstanding summary judgment articulated by Quan Zuwang 全祖望 (1705–1775) about Zhang’s ideas still echoes among many China scholars: Zhang Shi was like Cheng Hao, and ZHu Xi was like Cheng Yi (Huang and Quan 1986: 50.1609).

Amici curiae law professors filed this brief to urge the United States District Court for the District of Oregon to deny Plaintiffs' summary judgment motion. That motion argues that SB 519, Oregon state legislation that prohibits employers from firing workers who refuse to attend captive audience meetings about the employer's political, religious, or union views, is invalid as preempted by the National Labor Relations Act (NLRA) and inconsistent with the First Amendment of the federal Constitution. This brief argues that a finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship. Traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption. There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers. Employers in Oregon are still able to communicate their views about unionization with their employees as Section 8(c) of the NLRA contemplates, but are forbidden from engaging in conduct that forces these same employees to listen to such presentations on pain of losing their jobs or other benefits of employment. The right to speech simply does not include the right to compel someone to listen. Not under the First Amendment and certainly not under statutory law. In short, amici law professors maintain that the Court should find that Oregon had the inherent power to enact SB 519 and such promulgation is consistent with the reach and purposes of the NLRA and with principles of federalism.

Three methodological short cuts potentially streamline antitrust litigation. The availability of the per se approach provides a time tested way to avoid conventional trials where illegality is obvious. However, the seeming collapse of per se rules in modern antitrust cases creates a need for some type of abbreviated assessment of economic impact of alleged restraints. The quick look approach provides a means for a truncated pretrial evaluation of competitive effect. At the same time, a third potential short cut, summary judgment, appears to be readily available in antitrust cases after a period of some skepticism toward its use and appears to also interject pretrial assessment of economic effect into a case. This article first describes the quick look and antitrust summary judgment, and then explores integration of the two complementary concepts. Although I find that only a few cases grant summary judgment using the quick look, I posit that these two different short cuts are capable of efficient synergy in the same case. The paper paradoxically concludes that courts appear skeptical of the quick look's vague contours and, yet, seem willing to employ summary judgment, a similar procedure.

This Symposium Article argues that the motion to dismiss is the new summary judgment motion. In Iqbal v. Ashcroft and Bell Atlantic Corp. v. Twombly, the Supreme Court created a new standard for granting motions to dismiss under Rule 12(b)(6). Under the standard, a court decides whether a claim is plausible. This new plausibility standard is converging with the standard for summary judgment under Rule 56. Not coincidentally, the motion to dismiss appears to be having some of the same effects as summary judgment, including on the dismissal of employment discrimination claims. Moreover, as a result of the similarities between the motion to dismiss and the summary judgment standards, the Supreme Court case of Swierkiewicz v. Sorema N.A., which concerned the standard by which courts dismiss employment discrimination claims under Rule 12(b)(6), effectively may be dead. This Article concludes that the differences between the motion to dismiss and summary judgment call into question the propriety of Iqbal and Twombly.

In Tellabs, Inc. v. Makor Issues & Rights, Ltd., the Supreme Court held that a securities fraud complaint will survive a motion to dismiss only if a reasonable person would deem the inference of [culpable state of mind] cogent and at least as compelling as any opposing inference one could draw from the facts alleged. This paper analyzes how the Tellabs test may be applied, identifies questions left open under the decision, and discusses broader implications of the opinion and the PSLRA. Among other things, the paper suggests that the PSLRA's heightened pleading rules have deformed the motion to dismiss to the point where it now operates in securities fraud cases as a hybrid falling somewhere in between the traditional Rule 12(b)(6) and Rule 56 summary judgment procedures.

In the common law days, parties seeking to prove the contents of documents were required to produce the original documents or account for their non-production. Pursuant to the Best Evidence Rule, if such parties neither produced the originals nor accounted for their non-production, courts prevented them from proving their contents through secondary evidence such as handwritten copies or testimony. With the invention of new technologies such as the process of xerography, however, states in the twentieth century began enacting exceptions to the Best Evidence Rule which allowed for the admission of duplicates created without manual transcription even when proponents could not account for the non-production of originals. Enacted in 1975, Federal Rule of Evidence 1003 is consistent with the emerging state trend as it indicates that "[a] duplicate is admissible to the same extent as the original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." This article contends that courts have both failed to adopt a consistent approach to Rule 1003(1) challenges and that the scatter shot approach which they have taken has resulted in an improperly narrow construction and application of the exception. It argues that courts should instead determine whether parties opposing the admission of duplicates raise genuine questions as to the authenticity of originals by applying the same test that they use to determine whether parties opposing motions for summary judgment raise genuine issues of fact for trial.

This is a fable about the ethics of the billable hour and other professionalism issues. Four attorneys and a paralegal in a large law firm, each billing by the hour, draft a summary judgment brief in a high-stakes case. Through mismanagement, egotism, miscommunication, and inexperience, the bill for the brief exceeds $75,000.

The recent Supreme Court decision in Bell Atlantic v. Twombly stands at the crossroads of antitrust and civil procedure. As an antitrust case, Twombly makes sense on structural grounds. The FCC regulation of the telecommunications industry, and the many innocent explanations as to why each telecommunications company would stay out of its rival's territories obviated the need for further discovery. But in many other contexts, including Conley v. Gibson a case involving potential breach of the duty of fair representation on matters of racial discrimination discovery could flesh out the relevant factual issues. The Supreme Court's general disapproval of Conley sweeps far too wide. Discovery should only be denied when the plausible inferences that can be drawn from the complaint and publicly available evidence clearly imply further discovery is of little value. Accordingly, the Federal Rules of Civil procedure should explicitly acknowledge that in a small set of cases motions on the pleadings can properly function as truncated and disguised motions for summary judgment.

Prior research on summary judgment hypothesizes a substantial increase in summary judgment rates after a trilogy of Supreme Court cases in 1986 and a disproportionate adverse effect of summary judgment on civil rights cases. This article analyzes summary judgment rates in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), for two time periods, 1980-81 and 2001-02. It also analyzes summary judgment rates for the Central District of California (CDCA) for 1980-81 and for other civil rights cases in the CDCA in 1975-76. The combined sample consists of over 5,000 cases. The three-district sample for 1980-81 had an overall summary judgment rate of 4.5%. The summary judgment rate increased from 6.5% to7.0% in the two-district EDPA and NDGA sample from 1980-81 to 2001-02, a statistically insignificant difference. The pattern was inconsistent across case categories. For contract, tort, and a residual category of other noncivil rights cases, there was no evidence of a significant increase in summary judgment rates over time. Interdistrict differences were not dramatic in these three areas except that NDGA had a higher rate of summary judgment in tort and contract cases than did EDPA. The most striking effect was the approximate doubling - to almost 25% - of the NDGA summary judgment rate in employment discrimination cases and a substantial increase in the NDGA summary judgment rate in other civil rights cases. Subject to the limitation that both time periods studied are removed in time from the Supreme Court's 1986 summary judgment trilogy, the only strong evidence in this study of a post-trilogy increase is in NDGA employment discrimination cases. Civil rights cases had consistently higher summary judgment rates than noncivil rights cases and summary judgment rates were modest in noncivil rights cases.

The future of the enforcement of civil rights and civil liberties is linked to video. The proliferation of recording technology enables everyone - law enforcement, suspects, and bystanders - to record police-public encounters on the streets and in the stationhouse. The result is a balance of power in which all sides can record most police-public encounters - Big Brother is watching the public, but the public is able to watch Big Brother. The effect of this balanced proliferation of technology is to place video (and audio) recording at the heart of much modern civil-rights litigation and the enforcement of constitutional liberties.Video plays two roles in civil-rights enforcement, one at the back end and one at the front end of constitutional disputes arising from encounters between police and members of the public. At the back end is the question of what role those recordings play in enforcing constitutional rights and remedying constitutional violations captured on audio and video - as evidence in constitutional litigation (at trial and during pre-trial processes) under § 1983 and its federal equivalent, and as the basis for non-litigation remediation of any constitutional misconduct by government officials, such as settling lawsuits, disciplining offending officers, and creating or altering government policies to avoid similar misconduct in the future. Back-end use of video for civil-rights enforcement is complicated by two related considerations. First, film and literary theory show that it is a myth that video evidence is an unambiguous, objective, conclusive, singular, and clear reproduction of reality; in fact video evidence must be interpreted and construed (as with all evidence) and what a piece of video evidence means or signifies depends on who is watching, perceiving, and interpreting. Second the path breaking Harvard Law Review study by Dan Kahan, Dave Hoffman, and Dan Braman shows that video evidence is uniquely ripe for the effects of what they label cultural cognition, where the viewer’s interpretation or the message she draws will be highly contextualized and individualized and likely affected by a viewer’s identity-defining cultural characteristics. These insights together demand a level of caution - a degree of judicial humility in how certain they should be about what they (believe they) understand from the recording and the appropriate legal and policy steps to take in response. Courts must not allow misunderstandings about video to expand the use of summary judgment to pull a case from the jury; it is for the jury to interpret video and decide video’s meaning. Government policy makers and lawyers should be similarly cautious in using video in making non-litigation remedial decisions, especially in disciplining officers and settling litigation.The front-end question is whether the First Amendment provides the people a liberty to record such events in public spaces, to be the source of video evidence of police misconduct that will be used to resolve the underlying constitutional dispute. The answer to this question must be “yes,” in order to maintain that balance of power in availability and control of video evidence. Video still plays, and as technology advances increasingly will play, a substantial role in civil rights enforcement. Government therefore cannot have a monopoly on the ability to record police-public encounters.

Summary judgment in federal courts has been widely regarded as an initially underused procedural device that was revitalized by the 1986 Supreme Court trilogy of Celotex, Anderson, and Matsushia. Some recent commentators believe summary judgment activity has expanded to the point that it threatens the right to trial. We examined summary judgment practice in six federal district courts during six time periods over twenty-five years (1975 - 2000), extracting information on summary judgment practice from 15,000 docket sheets in random samples of terminated cases. We found that when we controlled for changes over time in the types of cases being filed, the likelihood that a case contained one or more motions for summary judgment increased before the Supreme Court trilogy, from approximately 12% in 1975 to 17% in 1986, and has remained fairly steady at approximately 19% since that time. The increase prior to the 1986 trilogy and the modest changes subsequent to the trilogy would be unexpected by many legal commentators. Although summary judgment motions have increased over this twenty-five year period, this increase reflects, at least in part, increased filings of civil rights cases that have always experienced a high rate of summary judgment motions. Surprisingly, no statistically significant changes over time were found in the outcome of defendants' or plaintiffs' summary judgment motions, again after controlling for differences across courts and types of cases. These findings call into question the interpretation that the trilogy led to expansive increases in summary judgment. Our analysis suggests, instead, that changes in civil rules and federal case management practices prior to the trilogy may have been more important in bringing about changes in summary judgment practice.