Professor Stephen Yeazell once wrote, “A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions.”* One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious...
Teaching Twombly and Iqbal: Elements Analysis and the Ghost of Charles Clark
This is an edited version of remarks I gave January 24, 2013, at the UCLA Law Review Symposium honoring the contributions of Professor Steve Yeazell to the field of Civil Procedure.
Unspoken Truths and Misaligned Interests: Political Parties and the Two Cultures of Civil Litigation
During the last four decades the United States has witnessed first the emergence and then the disappearance of civil litigation as a topic of partisan debate in national politics. Following two centuries in which neither party thought the topic worth mentioning, in the last decades of the twentieth and the first decade of the twenty-first century, both parties made it part of their agendas...
The Two-Tiered Program of the Tribal Law and Order Act
The Tribal Law and Order Act of 2010 was intended to significantly expand the sentencing powers of tribal courts, raising the maximum sentence for a given offense from one year to three. But the Act requires courts that would take advantage of these new powers to provide significant procedural protections to criminal defendants, while failing to provide the funding most tribal courts would need...
Trayvon Martin & Implicit Bias
The killing of Trayvon Martin in 2012 and recent verdict in the trial of George Zimmerman has generated intense national debate. Mr. Zimmerman's verdict has not ended the discussion, but instead caused of a firestorm of conversation in the national media. In light of this debate, we offer a 2012 essay published by two UCLA Law alums discussing the concept of implicit bias and its relationship...
"Healthcare for All"?: The Gap Between Rhetoric and Reality in the Affordable Care Act
The rhetoric of universal healthcare and healthcare for all that pervaded the healthcare debate culminated in the Affordable Care Act’s (ACA’s) passage. The ACA, however offers reduced to no healthcare services for certain noncitizen groups, specifically: (1) recently arrived legal permanent residents, (2) nonimmigrants, and (3) undocumented immigrants. This Article explores how the ACA fails to...
Vistas of Finance
Finance is undergoing a fundamental and technological shift. In the years ahead, there will inevitably be new financial characters and new financial cliffhangers. In this reply to the response of Professor Stephen Bainbridge to my article, The New Investor, I offer commentary on one particular new financial character, then on the general trope of cliffhangers as they relate to financial...
Prosecuting the Undead: Federal Criminal Law in a World of Zombies
Adam Chodorow’s recent essay, Death and Taxes and Zombies, has alerted the legal world to the dangers posed by the looming zombie apocalypse. Chodorow successfully demonstrates that existing tax laws are woefully inadequate in a world where the undead outnumber the taxpaying living. In this Essay, I argue that while tax law may be ill suited to address the zombie apocalypse, federal criminal...