2012 News Index
Professor Linda Elrod's article, "'Please Let Me Stay': Hearing the Voice of the Child in Hague Abduction Cases," has been published at 63 Oklahoma Law Review 663 (2011). A child's voice should be heard when judges are making decisions about with whom a child should live, including whether the child should be returned to the country from which he or she was abducted. Professor Elrod briefly outlines the history of hearing children's voices in judicial proceedings and the movement toward traditional attorney representation for children. She reviews the mandate for hearing the child's voice under the U.N. Convention on the Rights of the Child. Her article also explores the history and use of the exception to return for the objection of a mature child under The Hague Abduction Convention. Professor Elrod concludes that a child's voice should indeed be heard in every Hague return case, preferably through representation by a client-directed lawyer appointed for the child. (Posted January 31, 2012)
Professor Rory Bahadur's article, "The Scientific Impossibility of Plausibility," has been published at 90 Nebraska Law Review 435 (2011). The United States Supreme Court reiterated in its 2002 Swierkiewicz decision 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; 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. (Posted January 9, 2012)
Professor Rory Bahadur's article, "Almost a Century and Three Restatements after Green It’s Time to Admit and Remedy the Nonsense of Negligence," has been published at 38 Northern Kentucky Law Review 61 (2011). The tort of negligence is flawed and empirically unsupportable. Currently negligence requires a finding of unreasonable conduct. In modern negligence law and in the recent Restatement Third of Torts the existence of unreasonable conduct is established using a foreseeability based analysis. Another condition precedent for negligence to be actionable is a finding of proximate cause, the existence of which is also dependent on a foreseeability based analysis. The history of the tort demonstrates unreasonable conduct is a means of expanding liability and proximate causation restricts liability. Yet, despite the opposing aims of each element both are based on a foreseeability dependent analytical fulcrum. As a result the use of foreseeability both in the unreasonable conduct prong and in the proximate cause prong renders these supposedly different elements of negligence indistinguishable. Yet scholars, courts, and practitioners insist they must be different because some elements of negligence are determined as a matter of law and others as a matter of fact. Despite the insistence on difference there is no empirically supportable way to distinguish the various elements of the tort and no way to define the appropriate role foreseeability should play in establishing each element of negligence. Modern scholarship ignores this problem identified by legal realists as far back as 1923. Instead the scholarship is replete with illusory attempts to distinguish the appropriate role foreseeability plays in establishing the different elements of negligence. None of these academic and judicial distinctions, including the very recent Restatement Third of Torts, survives even cursory examination or hold up in actual litigation. The real solution is a reformulation of negligence based in part on the pre-Holmesian structure of the tort while accepting foreseeability can only mean one thing as it is applied across the spectrum of negligence elements. (Posted January 9, 2012)
