"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Thursday, October 29, 2015

The 2nd Circuit ruling undermined the earlier heightened pleading standard in federal civil rights cases

In 2007 and 2009 the U.S. Supreme Court decided two cases that, as legal commentators said, shook the foundations of civil rights litigation, compromised legitimate claims.

Commentators also pointed out that the Aschroft v Iqbal and Bell Atlantic v Twombly cases gave too much discretion to federal judges to rely upon their own (unknown to the parties) experience and "common sense" in dismissing the cases, and that the number of dismissals of civil rights cases based on the new "plausibility" standard for pleadings actually grew after these two cases were decided.

It is easy to see that invocation of "experience" and "common sense" of the judge awards to the judge fact-finding functions of a jury - at the pleading stage, and overriding, without a legal basis, the parties choice of juries as factfinders in civil rights cases. 

While the Federal Rule of Civil Procedure 8 requires a short pleading describing the essence of the case, not a factual pleading, the U.S. Supreme Court, by the two decisions described in the above link, reverted the pleadings to its ancient form of factual pleadings, putting an insurmountable burden upon civil rights plaintiffs who are supposed to plead out facts before discovery, even if such facts are in the exclusive possession of powerful governmental defendants.

For 8 years after 2007, federal courts merrily tossed civil rights cases for failure to satisfy the heightened pleading standard - even though heightening the pleading standard amounted to amending Rule 8 and Rule 9 (not requiring special pleading of a state of mind in a conspiracy to violated civil rights0, which courts had no right whatsoever to do.

On October 22, 2015, the tide may have started to turn, at least in the U.S. Court of Appeals, 2nd Circuit.

In the case Shamir v New York City Police, the 2nd Circuit has ruled that, even if a certain claim (use of excessive force) was not properly pled, it could be inferred by the court from the general pleading under the 4th Amendment.

Arguably, Shamir overturns the Bell Atlantic and the Iqbal v Twombly cases that required specific pleadings.

It is interesting to see how the reasoning in Shamir will be met by district courts.

 I will report on the issue.

Stay tuned.

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