Monday, September 16, 2013
SCOTUS Maps in the Classroom
This is the fourth post in a series about visualizing Supreme Court doctrine. In today's entry, I want to briefly demonstrate one way folks could use doctrinal maps in their classrooms. I'll work through a short example that should be very familiar to Civ Pro prawfs and 1Ls around the nation -- the change in FRCP 8 pleading standards brought about by the Supreme Court's decisions in Twombly and Iqbal.
Below is a snapshot of the map I made last night to help structure my own Rule 8 discussion in Civ Pro class this week. After the jump, I'll explain how I use the map -- and also demonstrate the SCOTUS Mapper software's "slideshow" function that permits you to walk your students through the visual complexity one step at a time.
One challenge I experience in teaching Rule 8 is communicating to students why Twombly and then Iqbal created such a brouhaha and why that matters. I want them to appreciate that although Twombly made a bold statement about rejecting settled language from Conley, courts and commentators weren't exactly sure how to interpret it. Was the Court announcing a sea change in pleading by talking about "plausibility"? Or was Twombly really just about limiting discovery in massive anti-trust cases?
To help explain the questions of doctrinal interpretation involved, I use a map. Rather than do any extensive independent research, I simply plotted out the basic doctrinal story as told by the casebook the students have -- the 6th edition of Richard Marcus et al's Civil Procedure: A Modern Approach. The lead cases in the casebook are Swierkiewicz, Twombly, and Iqbal. Notes discuss Conley, Leatherman, Erickson and Skinner. Besides charting these opinions, I also made sure to map the COA authority Justice Souter cited in Twombly to support his conclusion that Conley's "no set of facts" language had "earned its retirement."
The map helps students digest the cases they have read in preparation for class. It quickly distinguishes between opinions rejecting the propriety of dismissing a complaint on a 12(b)(6) motion [in green] from those affirming dismissal [in yellow]. It also illustrates the lines of tension and change in the doctrine -- using solid arrows to represent positive citations to precedent and dotted arrows to represent opinions that overruled or limited precedent. Thus, the picture is of Twombly overruling Conley and positively relying on three COA cases (O'Brien, Car Carriers, and Ascon Properties) [in red] that had previously sought to limit Conley's broad langague.
While I like this visualization (of course I do!), I nonetheless recognize that it is initially complex -- especially for a 1L audience. Luckily, the Mapper software has a feature that allows you to create custom "slideshows." This is a feature somewhat like PowerPoint that allows you to reveal citations in whatever order you chose. You start with an empty screen and then each click reveals one or more citations. This allows the whole picture to unfold as slowly as you like. To get a sense of what this looks like, check out this 30 second video.
In class, I start with the empty map projected up on a screen. We discuss Swierkiewicz and then I advance the first part of the map. Then we move away from the map and analyze Twombly. When the conversation gets to Justice Souter's authority for his Conley move, I return to the map and advance the slides that represent that move. Eventually, I note how the question of what Twombly meant was disputed. I click to reveal Erickson on the map and point to the X axis to how that per curiam case was decided just two weeks after Twombly. It seemed to indicate that Twombly changed little. Then we move to Iqbal.
Via the map, students immediately notice the irony of the fact that Souter wrote Twombly but dissented in Iqbal. We discuss why that is and what it means. The map also helps emphasize the idea that Justices Kennedy and Souter dispute what Twombly really meant and how it applied. Finally, just to show that the dust still hasn't settled, I click on the final slide that shows how Justice Ginsburg's decision in Skinner didn't even cite Iqbal or Twombly, relying instead on the Swierkiewicz line.
Now, I ask the forgiveness of non-Civ-Pro Readers for this extensive discussion of particular cases. Hopefully though, the basic idea comes through. The sequential presentation can help visualize any line of Supreme Court cases in a casebook. This is can be helpful, in my view, when there line is unsettled and interpretative debates remain. I invite Readers to consider whether they have any lines like this in the courses they teach..
That's it for this installment. More to come, so stay tuned!
Posted by Colin Starger on September 16, 2013 at 01:55 PM | Permalink
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This has been a good series. Thank you for it.
Posted by: Kyle | Sep 17, 2013 1:58:42 PM