Blog of law articles

Hi folks!

I don't know about you, but I'm a bit bored today.

Sure I could point out Vanessa Blum's well-written profile of Steve Zack.

BTW, did you know Steve does a Claude Pepper impression?

Hmm, maybe I should say, is there anyone out there who doesn't know Steve does a Claude Pepper impression?

Oh hail, perhaps the right question is -- does anyone even know who Claude Pepper is?

Like Steve, I do a killer George Raft impression, but for some reason the youngsters at the Bar functions just don't get into it like they used to.

Hey, did you know Representative Boehner's plan for transforming health care in America entails....reigning in junk lawsuits?

Oy veh.

For you helpless romantics (semantics?), a friend asks to break down Iqbal again:

The Iqbal court quoted the language from Twombly, that plaintiffs must "nudge[] their claims across the line from conceivable to plausible." I am moved to say that the court's pleading standard has gone from ridiculous to preposterous.

Of course, there is no practical difference between "conceivable" and "plausible," just as there is no real difference between "ridiculous" and "preposterous."

It only took me two minutes to find an opinion where the Court used "conceivable" and "plausible" interchangeably.

Not too long ago there was a case where the Supremes reversed a DC Circuit decision that Congress had violated equal protection with respect to a portion of the Cable Act. Here is F.C.C. v. Beach Communications, 508 U.S. 307, 313-14 (1993):

In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. See Sullivan v. Stroop, 496 U.S. 478, 485 (1990); Bowen v. Gilliard, 483 U.S. 587, 600-603 (1987); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174-179 (1980); Dandridge v. Williams, 397 U.S. 471, 484-485 (1970). Where there are "plausible reasons" for Congress' action, "our inquiry is at an end." United States Railroad Retirement Bd. v. Fritz, supra, at 179.

And then there’s the concurrence:

I continue to believe that, when Congress imposes a burden on one group, but leaves unaffected another that is similarly, though not identically, situated, "the Constitution requires something more than merely a `conceivable' or `plausible' explanation for the unequal treatment." United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 180 (1980) (STEVENS, J., concurring in judgment).

Is there any reason why “conceivable” and “plausible” are synonyms with respect to the rational basis test but not with respect to the pleading standard?

To sum it up, kids, is the Court’s wordplay laughable or risible?

Or as George Raft used to say, "part of it went on gambling, and part of it went on women. The rest I spent foolishly."