« Exploding offers from law reviews: a new trend? (Part I) | Main | The rival of my rival is . . . »

Tuesday, October 20, 2015

Argument preview: Three-judge courts and 12(b)(6) dismissals

I have a preview essay at SCOTUSBlog on Shapiro v. McManus, which considers whether a single judge can dismiss a claim under FRCP 12(b)(6) in an action that is subject to resolution by a three-judge district court. The argument is scheduled for Wednesday, November 4.

Posted by Howard Wasserman on October 20, 2015 at 09:31 AM | Permalink


Those ways being summary affirmance for an insubstantial question? Isn't insubstantiality the same screen that the petitioners concede the single judge can use; ergo, if single judges correctly applied that standard, wouldn't the Court be stuck with plenarily reviewing weak yet non-insubstantial claims? The worry then is that the Court would implicitly raise the bar for substantiality. Take the claims in this case, which seem to present substantial enough questions (what's left of the partisan gerrymandering doctrine). If they're pretty weak, factually, but not insubstantial, the Court will be stuck with a lousy partisan-gerrymandering case, even though there's still probably no majority on the Court for a justiciable partisan-gerrymandering test.

Posted by: Asher Steinberg | Oct 21, 2015 4:19:22 PM

I guess I don't find that a huge problem. There are not that many 3-judge cases any more and only a small percentage of those would be dismissed on 12(b)(6) by the three-judge court. So the cases will not add that much to the Court's docket, which is miniscule as it is. And the Court has shown that it has ways of dealing with such cases without putting it through plenary merits review.

Posted by: Howard Wasserman | Oct 21, 2015 3:08:00 PM

I guess what troubles me about the petitioners' argument, which I'm generally inclined to buy, is that if they're right you end up with mandatory review of 12(b)(6) dismissals of some pretty weak, though non-frivolous claims, with the only check being substantiality, which the petitioners are willing to concede a single judge can dismiss a claim on.

Posted by: Asher Steinberg | Oct 21, 2015 2:47:56 PM

The comments to this entry are closed.