PENNumbra—University of Pennsylvania Law Review

FEATURED DEBATE

by Mark Herrmann & James M. Beck & Stephen B. Burbank

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the United States Supreme Court reinterpreted Rule 8 of the Federal Rules of Civil Procedure and announced a new standard by which pleadings for civil suits in federal district courts should be judged. The Court explicitly rejected the notion expressed fifty years earlier in Conley v. Gibson that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief” and imposed a “plausibility” standard that every federal pleading must meet.

In Plausible Denial, Mark Herrmann and James Beck debate with Professor Stephen Burbank whether this plausibility standard is a proper “recalibration” of the pleading rules or an illegitimate “innovation” and whether Congress would be wise to overrule it. In their Opening Statement, Herrmann and Beck argue that the drafters of the Federal Rules intentionally left Rule 8 ambiguous. The creation of new federal rights, liberalization of class action rules, and massive escalation of discovery costs warranted the retirement of the “no set of facts” language from the Court’s earlier interpretation of Rule 8. In their view, the new course set by the Supreme Court is the proper one.

In Rebuttal, Burbank asserts that the pleading standard imposed by Twombly and Iqbal finds no support in the views of the drafters of the Federal Rules. Moreover, because it circumvented the rulemaking procedures established by the Rules Enabling Act, the Court was not well positioned institutionally to evaluate the procedural costs and benefits of the new plausibility standard. Legislation to restore the status quo, he argues, is necessary to provide sufficient time to consider change in a thoughtful and deliberate way through the democratic processes of rulemaking and legislation.

>Read Full Debate

FEATURED ARTICLE

by Kimberly West-Faulcon

/images/cartoons/image_4b15aa56dbe9c.jpg

Opponents of affirmative action are waging a national battle over race-conscious admissions through state ballot initiatives like California’s Proposition 209, Washington’s Initiative 200, Michigan’s Proposal 2, and Nebraska’s Initiative 424. With seemingly little regard for Title VI federal civil rights law, public universities have been prone to assume that “affirmative action–less” admissions policies and plunging minority admissions are the inevitable outcome of compliance with state anti–affirmative action laws. In The River Runs Dry, Professor Kimberly West-Faulcon challenges this framing. She argues that the prominent role of the SAT in selective college admissions, dictated in large measure by its importance in college-ranking and financial bond-rating systems, creates an incentive for universities to adopt “minority-deficiency” over “test-deficiency” explanations for racial differences in SAT scores. She considers whether universities that completely abolish affirmative action to comply with state anti–affirmative action initiatives may actually be breaking the law with respect to Title VI. Using statistical tests for identifying Title VI disparate impact, she analyzes selective California and Washington public university admissions cycles after the enactment of anti–affirmative action laws and finds racial disparities in admissions to affirmative action–less universities of sufficient magnitude that, if unjustified, could establish that an institution has a compelling interest in considering race to comply with federal antidiscrimination law. Based on this analysis, she concludes that state anti–affirmative action laws may permit the consideration of race if undertaken to remedy federal “racial effect discrimination.”

>Read Full Article

FEATURED RESPONSES

by Guy-Uriel E. Charles

In response to The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws by Kimberly West-Faulcon

In Do We Care Enough About Racial Inequality? Reflections on The River Runs Dry, Professor Guy-Uriel Charles focuses on the underlying assumption of West-Faulcon’s argument, namely, that the failure to take seriously the problems of inequality that afflict communities of color—e.g., racial inequality in education—is a consequence of the absence of (or the failure to recognize) legal tools sufficient to the task. Charles asserts that the problem is not a lack of legal tools but the failure of the legal system—as demonstrated in the Supreme Court’s recent decisions in Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano—to recognize the dignity of people of color in constitutional analysis. Accordingly, Charles argues that legal academics need to make not just legal arguments but a renewed case why we ought to care about racial inequality.

>Read Full Response

by Girardeau A. Spann

In response to The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws by Kimberly West-Faulcon

In Doctrinal Dilemma, Professor Girardeau Spann describes West-Faulcon’s argument as both analytically sound and enticingly clever. The problem, however, is that doctrinal arguments can always be developed that are cogent enough to support the outcomes favored by socially powerful opponents. Indeed, Spann constructs just such an argument that would allow one to evade West-Faulcon’s conclusion that state anti–affirmative action laws permit race-conscious remedial admissions. In the end, Spann argues that legal scholars seeking to promote racial justice confront a serious dilemma: continue to make doctrinal arguments and reinforce the legitimacy of a social system that uses law as a tool for the continued oppression of racial minorities or stop participating and risk losing those sporadic concession that even an oppressive social system must occasionally make to prevent bottled-up frustrations from ripening into serious threats of destabilizing change.

>Read Full Response

Email Address *

First Name *

Last Name *

Professional Information

Preferred format

HTML Text Mobile