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The AALL Spectrum® Blog is published by the American Association of Law Libraries. Submissions from AALL members and other members of the legal community are highly encouraged. Opinions and editorial views expressed are those of the authors and do not represent the official position of AALL. AALL does not assume any responsibility for statements advanced by contributors. The previous Spectrum Blog was located at aallspectrum.wordpress.com.
10/25/2013 4:32:55 PM

One Weekend During the Government Shutdown

One Weekend During the Government Shutdown

Practicing Portuguese

At work, there are a couple of people that speak Portuguese. When I discovered this, I was ecstatic. I couldn't wait to bend their ear, but I decided not to. I thought that it was probably best not to overwhelm my colleagues with my passions. Instead, I joined a Portuguese speaking group on a local social media website and listened and talked in Portuguese with native speakers and Portuguese language enthusiasts like me. I took tutoring sessions, met some great pals, and improved on my language skills. I felt good about my language skills, and three months ago in July I booked a small vacation to Lisbon for birthday in October, which ended up being during the government shutdown.

Washington, D.C.

Before leaving I packed one carry-on bag, containing my very old Windows XP laptop, one additional pair of jeans, four shirts, my passport, two credit cards, and makeup.

It was Saturday around 3:00 p.m. during the first week of October. I saw debris on the street heading to catch a taxi in Washington, D.C. I live in the District, in a neighborhood named Columbia Heights. The streets can get a little grimy here, but they are usually swept clean by the late afternoon on a Saturday. I wondered if the debris was one of the signs of the government shutdown.

Although the local D.C. government has been using reserve funds to keep local government working, I am not sure how that impacts street sweeping on weekends. (Washington Post article "Nine ways the shutdown will get more painful as it drags on" By Brad Plumer, published on October 10, 2013 discusses the impact of the government shutdown including services in Washington, DC.: http://www.washingtonpost.com/blogs/wonkblog/wp/2013/10/10/nine-ways-the-shutdown-will-get-more-painful-as-it-drags-on/?Post+generic=%3Ftid%3Dsm_twitter_washingtonpost  )

The taxi ride through the city on the way to Reagan National Airport showed deserted streets; no tourists, volunteers, or workers in streets that were very recently robust. I remarked on how you can see the impact of the government shutdown. If you were not already sobered by the news, you were certainly sobered by the nearly empty streets.

Reagan National Airport

I arrived at the airport ahead of time and waited for my flight. The airport looked deserted. The taxi cab driver remarked: it looks like you're the only one here. My stomach turned; I felt guilt. I had planned, booked, and bought my short vacation for my birthday three months ago. I even prepaid for my hotel to lock in the rate. I budgeted the weekend on a small budget, and colleagues and friends encouraged me to go. So, I pushed forward, took a breathe and walked in to the airport.

My stomach fell. The airport looked deserted. It was sad to see. I walked up to the ticket agent hoping to feel out the mood and see which gate I should go to. She looked like a nice woman. I said: Hello, I have a flight from here to Philadelphia then on to Lisbon. I showed my boarding pass. She had an attitude and said: What are you giving me this for if you already have your boarding pass; go to gate 22. I said: Thank you.

I passed through security and headed to my gate. I looked around and the gate looked empty. I took a picture. I sunk in my chair by two women also heading Lisbon. Then, big band music began to play through the area. I began to feel better. I wondered if the airport felt gloomy enough to other people that someone decided to play cheerful music. I was wrong. Apparently I was waiting for my flight near the USO Lounge. They welcomed "military personnel traveling through Reagan National Airport" (http://www.usometro.org/location.php?p=19). They made a cheerful noise as they clapped and danced to the sounds of big band music by the USO Lounge in Reagan National.

The flight to Lisbon was smooth. Besides the disagreement on the plane about one woman's black brim hat taking up too much space in the overhead compartment, and the gang that formed to insist that she move it or wear it, the flight was great and we got to our destination safely. When the woman finally retrieved her hat after the seven hour flight, she placed it on her head and wished everyone happy travels. No one seemed to care what she said or even to recognize that she spoke. We waited to exit the plane and eventually stepped outside to Lisbon, took a joyful breathe on a clear day and waited in the taxi line.

Lisbon

I got in the taxi to go to my hotel, and I spoke Portuguese to the taxicab driver. He asked me where I was from. After I told him, he said in English: Washington, DC, it's shutdown, they have a lot of problems there. In Portuguese I replied that there's a lot of problems everywhere. We agreed, and he talked of the sights that I should see like the Marques de Pombal on Avenida Liberdade.

Indeed, I did walk to the Marques de Pombal, it was beautiful and looked like the shopping district in Georgetown in Washington, D.C. mixed with the unique quality of UC Berkley, and sprinkled with a few palm trees. I also went on a bus tour to the countryside and tried the local liquor in Obidos called Ginja. You drink Ginja in a small chocolate cup and eat the cup after you're done. I also walked around Lisbon sightseeing.

Each evening during my short visit to Lisbon, I checked email, twitter, Facebook, and turned on the news. I watched the news in English: BBC News, Sky News, CNBC's Squawk Box. They all heavily covered the government shutdown, possible default, and made predictions. I also turned to Euronews in Portuguese, but the broadcast team talked too fast for me to catch without closed caption, except for when they showed the U.S. Capitol and announced: Government Shutdown. I well understood what the Portuguese speaking broadcast team was discussing then.

Conclusion

Overall, my short trip to Lisbon was fantastic. The timing became awkward since it landed on a weekend during the government shutdown. However, since it was paid for, I went on the trip. I remember speaking Portuguese, meeting nice pals, and sightseeing. I also remember watching the news in Lisbon and feeling somewhat embarrassed that the government shutdown. Now that the government shutdown has ended we all hope that things will return to normal very soon.

Tracy Woodard is the Legislative Librarian at Katten Muchin Rosenman LLP, Washington, D.C.  

Posted By Tracy Woodard at 10/25/2013 4:32:55 PM  0 Comments
9/26/2013 7:34:59 PM

Book Review: New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors?

Dodson, Scott, New Pleading in the Twenty-First Century:  Slamming the Federal Courthouse Doors? (Oxford:  Oxford Univ. Press, 2013), ISBN 978-0-19-983250-7 (hardcover), xii + 243 pp. (incl. index), $85.00

When we think of the “sexier” Supreme Court rulings, we think of Obamacare, of same-sex marriage, of civil rights—the type that are routinely inflicted on first-year Con Law students.  What does not come rushing to mind is civil procedure, and yet, it has its landmarks, too:  Erie R.R. Co. v. Tompkins, World Wide Volkswagen, Burger King Corp. v. Rudzewicz, to name but a few.  Prof. Dodson would like you to know that two other civil procedure landmarks radically altered the federal practice landscape a few years back--for the worse--and has written a monograph on it.  So the argument goes, the effect of these two rulings is to throw out the old “notice pleading” regime established by the Federal Rules and to replace it with New Pleading, which is effectively “fact pleading.”  Another effect is to make it substantially easier to dismiss meritorious complaints due to information asymmetry, with concomitant adverse effects on the federal litigant’s access to justice.  Although the reader may question the practicality of his proposal for a form of "New Discovery," and part of the work is not strictly necessary to his argument, the depth of the analysis and the valuable history of pleading practice he provides make this a trenchant and engaging treatise worth having.

A little background will help frame Prof. Dodson’s argument.  From 1938 to 2007, Fed. R. Civ. P. 8 established the familiar “notice pleading” regime in federal court.  In order to pass muster under Rule 8, a complaint needed only to provide sufficient notice to the defendant of the nature of the claim against him. When the Supreme Court addressed the notice pleading standard in Conley v. Gibson, 355 U.S. 41 (1957), it held that dismissal pursuant to Rule 12 (b) (6) for failure to state a claim should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”[1]  This “Old Pleading” under Rule 8 reflected a permissive-access policy to the federal courts, as well as a desire to open the doors to discovery.  Only rarely should a complaint wither and die at the pleadings stage, and then only for legal insufficiency.  Pretrial disposition of a case was more appropriate on summary judgment under Rule 56, after discovery.

Over the intervening decades, there was an explosion of federal litigation, accompanied by calls to rein in rampant discovery, which was overwhelming the resources of parties and the court.  Eventually, a system of case management developed, culminating in the Rule 26 (f) discovery plan, and a much closer system of monitoring that helped streamline what had been a potentially overwhelming ordeal.  Further discovery limits were imposed in 2000 and 2006.

Then the Supreme Court issued its decision in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), holding that a complaint can be dismissed under Rule 12 (b) (6) for failing to plead facts sufficient to establish the “plausibility” of the claim.  Throughout the succeeding two years, there was much academic speculation that Twombly was limited, for policy reasons, to large class-action antitrust cases like it.  After all, this was exactly the sort of case which had so bothered commentators since the 1970s—it had the potential to rack up huge litigation costs on the strength of rather vague facts.  However, the Court followed up with Ashcroft v. Iqbal, 556 U.S. 662 (2009), a comparatively narrow religious and national-origin discrimination case, which underlined that the plausibility standard established in Twombly was generally applicable.  Thus was “New Pleading” born.

New Pleading, explains Dodson, is essentially fact pleading.  No longer is a 12 (b) (6) motion limited to the legal sufficiency of the complaint, as established under Rule 8 and Conley.  Instead, a Court now must decide the factual sufficiency of the complaint, which raises a serious problem in information-asymmetry cases—i.e., those in which the facts necessary to survive a New Pleading motion to dismiss are in the sole possession of the defendant, such as intent evidence.  Dodson’s empirical data comparing motions filed before Twombly and after Iqbal shows that there has been an overall increase in dismissal rates as a function of motions filed, as well as a corresponding increase in fact-based dismissal rates, especially where the plaintiff is unrepresented.  Although the Court’s purpose appears to have been to screen non-meritorious cases, Dodson argues that the actual effect has been to screen out meritorious complaints where there is an information asymmetry between plaintiff and defendant, and that this disproportionately impacts civil rights claims.  Also, whatever cost savings might have been realized through the screening effect are likely offset by the increase in dismissal filings. 

Ultimately, Dodson wants a return to Old Pleading, but acknowledges that, for various political and administrative reasons, this is extremely unlikely.  So, instead, Dodson proposes minimizing the adverse impact of Twombly and Iqbal on information-asymmetry cases by instituting a system of what he calls New Discovery.  This presuit discovery procedure, used sparingly, would permit plaintiffs to engage in limited discovery designed to determine whether or not they have a claim that can survive the Twombly “plausibility” standard.  Gamesmanship would be minimized by tolling the applicable limitations period during the pendency of New Discovery. 

As a former practitioner, I found myself wondering how practical New Discovery would be, given the hardball tactics of seasoned litigators.  Dodson himself realizes that his solution will be attacked as “naïve”[2] and that his proposals are imperfect ones.[3]  Gamesmanship will still occur, and implementing a tolling provision could be “tricky.”[4]  I worry that this fix he has devised for dealing with the mess caused by Twombly and Iqbal will be easily frustrated by those who fall back into “old habits.”[5]

From an organizational standpoint, New Pleading in the Twenty-First Century is a bit repetitive.  This is basically a double-length law review article, but I think, with some judicious editing, Dodson’s message could have been pared down by as much as a third without undermining its effectiveness.  For instance, the entire sixth and final chapter—a comparative analysis of pleading regimes in other countries—is of doubtful utility, since ultimately it doubles back to a state law discussion made in a previous chapter.  I honestly think he could have jettisoned Chapter Six and moved his conclusion to the end of Chapter Five. Other points are revisited often throughout the work, perhaps excessively so.  Also, the citations are covered entirely in footnotes.  The lack of a bibliography may be off-putting to researchers, but there is at least an index. 

Although I’m not entirely convinced by his proposals, I think his analysis is sound, and he makes a compelling case for the pernicious effects of New Pleading on access to federal courts.  New Pleading in the Twenty-First Century will primarily appeal to civil procedure and federal jurisdiction faculty, but the style is straightforward enough so that federal practitioners won’t be deterred by the turgidity of prose common to academic writing.  This work is certainly an important contribution to the continuing debate on New Pleading, and well worth adding to your collection.

David E. Matchen, Jr., is the Circulation/Reference Librarian at the University of Baltimore Law Library, and can see where John Wilkes Booth is buried from his office window.

[1] Conley v. Gibson, 355 U.S. 41, 45-46 (1957), as quoted in Dodson, supra, at 27.

[2] Dodson, supra, at 199.

[3] Id., at 206.

[4] Id., at 207.

[5] Id., at 199.

Posted By David Matchen at 9/26/2013 7:34:59 PM  0 Comments
9/26/2013 12:07:31 PM

The September/October 2013 issue of Spectrum is Now Available on AALLNET!

We hope you enjoy the latest issue of Spectrum and encourage you to share your thoughts and feedback using the "comments" box below!

2013 Annual Meeting in Seattle
A collection of photos from a memorable Annual Meeting
Photos by Brant Bender, Brant Bender Photography

Public Relations: Recognizing Excellence
The 2013 AALL Excellence in Marketing Award winners
By Joy Shoemaker

A Customer is a Patron is a Client . . . But Not Really
Naming and what it makes us think about our users
By Carol Ottolenghi

Howdy, Neighbour!
Introducing the Canadian Association of Law Libraries
By Annette Demers and Nancy McCormack

Do Androids Dream of Electric Books?
Thoughts on legal content dissemination and consumption in the digital environment
By James S. Heller

Automated Library Services
One law library's experience
By Alicia Brillon and Valeri Craigle

Would it Kill West . . . 
. . . to include the same information on WestlawNext and
Westlaw Classic that it includes in West Reporters?
By Patrick J. Charles

Who Has the Time?
Or why firm librarians don't volunteer for AALL committees
By Sarah K.C. Mauldin

Cautious Creativity
Thoughts for the risk-adverse law librarian
By Galen L. Fletcher

The Tools of Our Trade
The modern world requires that librarians be among the first to exploit digital tools
By Richard Leiter

Embracing Facilitation
How can facilitation techniques help us in the workplace?
By Katherine Marshall

From the Editor
I'd Like to Hear From You
By Catherine A. Lemmer

From the President
Beyond Boundaries: Making Connections and Bridging Divides
By Steven P. Anderson

Washington Brief
2013 Policy Programs Help Build Knowledge, Advocacy Skills
By Emily Feltren

From the Secretary 
Report from the July 2013 Board Meeting and Business Meeting
By Deborah Rusin

The Sustainable Law Librarian
Heading Down the Green Path: How Can We Continue to Improve Our Annual Meeting's Sustainability Efforts?
By David Selden

The Reference Desk
My director has been very generous about celebrating the birthdays of our staff. She always provides a card and arranges for each employee to have his or her favorite cake. However, one colleague always ends up with a little something "extra." I have to say that I'm a little resentful of this, and I'm not the only one. Someone needs to speak up and tell our director how this makes the rest of us feel, don't you think?
By Susan Catterall

Stu's Views

Member to Member
In this era of 24/7, do you fully disconnect when you are out of the office on vacation or at a conference?

Views from You
The Fort Worth Water Gardens as seen from the second floor of the Texas A&M University School of Law

Posted By Ashley St. John at 9/26/2013 12:07:31 PM  0 Comments
TOPICS: spectrum