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Mississippi has taken another paternalistic step forward. This week, the City of Jackson voted to ban smoking in all restaurants. Reading through the comments on the article, and based on conversations I’ve heard, there appears to be a general concern for children underlying the support for such a measure. Says one commenter:

I am all for a total ban on smoking, but I think to be reasonable that the law should ban smoking anywhere that children may be present. It should be allowed in stand-alone bars, nightclubs, and casinos. It is fair that smokers have somewhere to go, but they should not be allowed to smoke around children. And I should not be forced to keep my child at home to avoid their smoke. It is time for smokers to have some responsibility.

This is a very interesting statement. It implies that tobacco smoke and children should not exist in the same place at the same time. Assuming for the moment that this is true, why prefer children over smoke in Red Lobster? If smoke is irritating, what about screaming, crying babies and poorly behaved children? It’s almost impossible to relax and enjoy a good cigar after dinner with all the annoying children carrying on. So again, why not pass a law prohibiting children from restaurants? Because it would be absurd, that’s why.

There once was a day when politicians and judges would refuse to hear these issues, preferring to let the market self-regulate. In this age of state paternalism, that seems to be an antiquated notion. In the old days, property owners had the right to allow or prohibit perfectly legal behavior on their premises. If you didn’t like smoke and a non-smoking section wasn’t good enough for you, you could register your displeasure and not come back. If enough people did the same, the restaurant would lose business and be forced to reassess its position.

Likewise, if a restaurant voluntarily prohibited smoking and you like to enjoy a cigar or pipe after dinner, you could register your displeasure and eat elsewhere. In either case, property owners were free from government intrusion and the market would regulate itself.

But not anymore. Now, if there’s something that annoys you, you don’t have to be content to merely utter “there oughta be a law…” Now, you can actually get one.

As I noted a couple of months ago, the dust kicked up by last year’s Supreme Court decision Bell Atlantic Corp. v. Twombly will take quite a while to settle. In a recent (and ongoing) case in which post-9/11 detainees are suing the federal government, the feds tried to get the case dismissed on the grounds that the facts alleged in the pleadings were unsupported by sufficient evidence. The Court of Appeals for the Second Circuit ruled that the pleadings were “plausible,” borrowing language from Bell Atlantic. According to the New York Times:

The standard for allowing the case to go forward should be higher than mere plausibility, the government said, pointing to recent Supreme Court decisions, including one in an antitrust case last year, that raised the standard for the evidence that plaintiffs must provide at the initial stage in order to withstand a motion to dismiss their lawsuit.

The unnamed antitrust case is a reference to Bell Atlantic and while the NYT article implies that the Government is getting greedy and arguing that even plausibility is insufficient, the text of the appeal makes it look more as if the Government is arguing that even though the Second Circuit couched its opinion in terms of plausibility, the evidence at this early stage is nonetheless insufficient under Bell Atlantic.

The case is styled Ashcroft v. Iqbal and the Supreme Court granted certiorari, meaning that we could soon have a firmer understanding of the impact of Bell Atlantic on the notice pleading system. Stay tuned…

Exams finished up last week. I barely had time to catch my breath from the incessant studying before beginning work as a summer clerk yesterday! Looking back at the whirlwind of what was my 1L year, it’s hard to believe it’s over. Sometimes, when I forget where I am, I still find myself worrying about starting law school, wondering what it will be like and if any of the other kids will like me. Then I snap out of it and realize that I learned a lot, made some good friends, and even got a job or two as a lawyer lite. It was a good year. I never realized how fun law school would be. Well, fun until exams roll around, that is.

So now we’ve got one year down, two more to go. Here’s to hoping the next two are as fun as the first.

The attorney/client privilege has many implications, one of which being that in civil cases, a party cannot obtain discovery from the opposing party’s lawyer of information told to him by his client. The primary reason for this is that a person has to be able to have 100% trust and confidence in his lawyer if the two are to work together to prepare a proper case.

In the criminal justice system, the attorney/client privilege looks a little different, at least in the public eye. One of the ethical requirements that obligates a lawyer is to never incriminate his client. The reasons for this are much the same as in the civil context. Even though we don’t like “bad guys,” they are nonetheless entitled to an adequate defense. If the system allowed lawyers to “rat out” their clients, the system would effectively deprive the accused of an adequate defense. Defendants would always be on guard, unable to trust their own attorney. They would resist divulging any information they wouldn’t tell the police and they would simply be unable to have an adequate defense.

With this in mind, consider the case of Alton Logan. Logan has been in prison for 26 years for a crime he didn’t commit. The true perpetrator, Andrew Wilson, had in fact committed the murder for which Logan is serving time. At the time, Wilson had told his lawyers that he, and not Logan, had committed that murder, but Wilson’s attorneys were bound by the attorney/client privilege and could not come forward with the information.  Logan was wrongfully convicted and only now that Wilson has died in prison has the privilege been released and the truth been able to come out.

It is very difficult to be in the position of defending a system which allowed an innocent man to spend 26 years in prison for a crime he didn’t commit. On the other hand, I’m not really defending it. The burden for falsely convicting Logan rests on the prosecution and Logan’s own lawyers. Since Logan did not actually commit the crime, we should blame the system that falsely convicted him.

The attorney/client privilege is good for the system, even though it occasionally seems to produce unjust results. It also highlights the reasons I have no desire to go into criminal law. The stakes are very high and the toll it takes on the conscience is not one I’m willing to pay.

Our federal court system operates under a “notice pleading” scheme, which simply means that a complaint filed to begin a lawsuit serves the purpose of putting the defendant on notice of the subject matter of the suit. It has been well-settled that detailed factual allegations are not required at the pleading stage; the plaintiff only need give enough information to make the defendant reasonably aware of the suit and able to begin preparing a defense.

So it was somewhat of a shock when, not even a year ago, the Supreme Court dismissed a RICO claim under a Fed. R. Civ. P. 12(b)(6) motion for failure to state a claim, based on the fact that the plaintiff’s pleadings failed to allege facts that crossed the line from “possible” to “plausible.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (U.S. 2007). The effect of such a ruling is still unknown, and some have gone as far as to suggest that Bell Atlantic may have ushered in a “post-notice pleading” era in federal civil practice.

Seventh Circuit Judge Richard Posner (the famed law and economics proponent and one of the most oft-quoted judges in casebooks of all colors) recently weighed in on the effect of Bell Atlantic. Judge Posner suggested that the holding of Bell Atlantic ought to be considered peculiar to complicated RICO cases and others like them, and suggested that the requirement for additional facts in the complaint which show a “plausible” claim is appropriate where discovery would be more costly than usual. Limestone Dev. Corp. v. Village of Lemont, Ill., No. 07-1438, 2008 WL 852586, at *5 (7th Cir. Apr. 1, 2008).

Judge Posner echoed the Supreme Court, stating that Bell Atlantic does not impose a heightened pleading standard. Nonetheless, it is hard to read it any other way. At the very least, Judge Posner’s explanation seems to indicate that those who will be most aversely affected by this line of cases will be those who are the most interested in obtaining relief, and it seems to protect those who are in the best position to handle the costs of the potential lawsuit. Large corporations typically have all the evidence, especially in RICO cases. The purpose of discovery is to unearth that evidence. By effectively holding that plaintiffs must have enough evidence to even get to the procedural phase in which they are empowered to obtain it places an additional hedge of protection around large corporations who now merely have to claim that the plaintiff’s complaint (while “possible”) is not “plausible,” and contend that discovery would be more costly than usual.

HT: Fight the Hypo