如果什么?:在托姆布雷/伊克巴尔制度下决定的重大案件研究

Brooke D. Coleman
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引用次数: 1

摘要

如果像《生活多美好》里那样,我们能够回到过去,看看没有特定法律规则的生活会是什么样子呢?换句话说,如果我们能成为一天的乔治·贝利呢?正是通过这种“如果”的视角,本文处理了已经被广泛讨论的贝尔大西洋诉托姆布雷案和阿什克罗夫特诉伊克巴尔案。但是,与迄今为止处理这些案例的学术研究不同,本文采用了一种完全不同的方法。它没有预测法院未来会对托姆布雷和伊克巴尔做什么,而是问如果几十年前托姆布雷和伊克巴尔存在的话,法院会怎么做。为了进行这一练习,本文着眼于已经成为法律圈常见说法的案例中的实际投诉,如巴克诉加州大学校务委员会案和霍普金斯诉普华永道案,并将托姆布雷和伊克巴尔案中阐明的标准应用于它们。通过这样做,本文试图具体思考托姆布雷/伊克巴尔辩诉制度的后果,考虑到被批准的驳回动议可能对我们今天认为理所当然的案件产生的潜在影响。这需要微观和宏观的考虑。在微观层面上,值得思考的是,该诉讼是否可以重新提起,并最终在驳回动议中幸存下来。在宏观层面上,这项工作涉及更广泛地考虑,如果此案从未得到裁决,将会发生什么。换句话说,这个开创性案例所定义的教义会受到怎样的影响?更广泛地说,特定类型的法律实践的发展是如何改变的以及其他社会变革模式是如何被利用的?通过以这种方式考虑托姆布雷和伊克巴尔的影响,本文提供了另一种方式来考虑托姆布雷/伊克巴尔制度的利弊。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
What If?: A Study of Seminal Cases as if Decided Under a Twombly/Iqbal Regime
What if, like in It’s a Wonderful Life, we were able to go back and see what life would be like without a particular legal rule? In other words, what if we could be the George Bailey of law for a day? It is through this “what if” lens that this essay tackles the already well-discussed cases of Bell Atlantic v. Twombly and Ashcroft v. Iqbal. But, unlike the scholarship that has addressed these cases so far, this essay stakes out a completely different methodological approach. Rather than predicting what courts might do with Twombly and Iqbal going forward, it asks what might have been had Twombly and Iqbal existed decades ago. To engage in this exercise, the essay looks at actual complaints in cases that have become common parlance in legal circles, Bakke v. The Regents of the Univ. of Cal. and Hopkins v. Price Waterhouse, and applies the standards enunciated in Twombly and Iqbal to them. By doing so, the essay attempts to concretely think about the consequences of a Twombly/Iqbal pleading regime by considering the potential impact that a granted motion to dismiss might have had on cases that we take for granted today. This requires both micro and macro considerations. At the micro level, it is worth thinking about whether the complaint could have been re-filed and ultimately survive a motion to dismiss. At the macro level, the exercise involves a broader consideration of what would have happened had the case never been decided. In other words, how would the doctrines defined by that seminal case have been affected? And, even more broadly, how might the development of particular kinds of law practice changed and how might other modes of social change been utilized? By considering the effect of Twombly and Iqbal in this manner, the essay offers yet another way to consider the benefits and drawbacks of a Twombly/Iqbal regime.
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