Generally speaking, it is easy to commence a litigation in the United States because pleading requirements are not strict. That is, a plaintiff can usually file a lawsuit without including too much detail and without including evidence in the complaint. The additional details and evidence can come later. These same lax rules also apply to counterclaims and defenses. Rule 8 of the Federal Rules of Civil Procedure imposes three requirements on a complaint: a short and plain statement of subject matter jurisdiction, a short and plain statement showing that the plaintiff is entitled to relief, and a demand. Rule 9 requires some additional detail if a complaint or counterclaim alleges fraud (or a defense relates to a mistake). Some people criticize lax pleading requirements on grounds that it harms defendants who must pay money to defend or to settle meritless claims. Congress enacted the Private Securities Litigation Reform Act (the PSLRA) in 1995 to curb purportedly meritless securities fraud litigation. The PSLRA makes it more difficult for plaintiffs to commence the lawsuit by requiring additional details in the complaint. Recently, interest groups in the United States and members of Congress have worked to enact stricter pleading requirements and other reforms related to patent troll litigation. You might want to look at some videos I uploaded regarding pleading requirements in the federal...Read More
Category: What does . . . mean?
42 USC 1983 is a statute, a law enacted by Congress. The law allows a person whose Constitutional rights were violated by government officials to sue in federal court. The defendant in the case must be someone acting on behalf of a state or local government. A plaintiff can also sue a local government, such as a city, for violating his constitutional rights. Congress passed 42 USC 1983 because of a concern after the United States Civil War that southern states deprived black people of their Constitutional rights. 42 USC 1983 empowers victims to sue state officials, and those acting on their behalf. A Bivens Action is different because the defendant in a Bivens Action is alleged to be acting on behalf of the federal government, not a state government. The Supreme Court, in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), held that plaintiffs whose Constitutional rights were violated by persons acting on behalf of the federal government (may) have an implied right to sue federal officials in federal court. The plaintiff in that case was named Warren Bivens so now we call these types of cases “Bivens Actions”. Learn more about a 2017 Supreme Court case, Ziglar v. Abbasi which discusses the scope of Bivens actions and the separation of powers: Ziglar v. Abbasi: The Scope of Bivens Actions Below is an older video on Bivens...Read More
I received a number of comments that it seems inefficient for different states to have different laws and legal systems. Here are a few thoughts on this: 1. Many people might agree with you. In fact, there are “uniform laws” adopted by most or all the states for precisely that reason – – so that each state will apply the same law. For example, in connection with business (the Uniform Commercial Code or UCC) and criminal law (the Model Penal Code), many states enacted similar codes. 2. In any event, most laws tend to be fairly similar. For example, no one could seriously believe that in his home state it would be illegal to start a fire in the lobby of a hotel but that in another state that type of dangerous activity could possibly be legal. 3. There are some advantages to having different legal systems and statutes in each state. First, states can specialize in areas of law. For example, Delaware has well-developed law regarding corporations. States in the west or south developed useful law regarding cattle branding. New York is not famous for cattle branding but many people respect New York’s sophisticated commercial laws and courts. Second, different states can experiment with different laws and states can learn from each other. For example, California law regarding torts tends to be ahead of the...Read More
Extradition is where one state transfers a defendant to another state to face trial. The United States Constitution (Article IV Section 2) requires states to extradite persons accused of crime. There is also federal law requiring extradition. Each state has its own rules governing extradition but generally speaking, when one state demands that a second state extradite a defendant, the defendant must be...Read More
A litigator is a type of lawyer. On television shows most lawyers are litigators. They are lawyers who represent clients at criminal trials or in private lawsuits (Company A sues Company B or Mr. A sues Mr. B). Some lawyers might specialize in criminal litigation, others might specialize in business litigation, such as contract disputes. When we refer to a lawyer as a “litigator” we are referring to the lawyer’s specialty. There are other kinds of lawyers besides litigators. Some lawyers specialize in transactional work such as when one company merges with another company. Other lawyers might specialize in family law, tax, or intellectual property. Television and movies usually have trials (because trials make good drama) so that is why most lawyers you see on screen are litigators, not transactional specialists. Some lawyers have more than one specialty. A lawyer with a general practice could do litigation 50% of the time and also help people with real estate transactions and estate planning with the remainder of his time. ...Read More