An Updated Quantitative Study of Iqbal’s Impact on 12(b)(6) Motions

Patricia Hatamyar Moore *

Judges, lawyers, academics, legislators, and law students have collectively spent thousands of hours over the last two years parsing Ashcroft v. Iqbal, debating whether it mandated a radical change in federal pleading standards, and predicting its future influence on rulings on motions to dismiss federal complaints under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Some have also attempted to quantitatively measure whether federal district court judges were less likely to grant 12(b)(6) motions under the old “no set of facts” standard set forth in dictum in Conley v. Gibson than under the new “plausibility” standard introduced in Bell Atlantic Corp. v. Twombly and amplified in Iqbal.

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* Associate Professor of Law, St. Thomas University School of Law. J.D., 1983, University of Chicago Law School; B.A., 1980, Northwestern University. A research grant from St. Thomas University School of Law supported work on this article.

Beyond the Formalist-Realist Divide: The Role of Politics in Judging, Reviewed by Professor Marin Roger Scordato

Marin Roger Scordato *

In 1922, Charles Grove Haines, a political scientist, wrote, “American courts have clung to the belief that justice must be administered in accordance with fixed rules, which can be applied by a rather mechanical process of logical reasoning to a given state of facts and can be made to produce an inevitable result.” Seventy-five years later, Frederick Schauer, a professor of law, wrote, “To the Legal Realist, rules serve not as sources of ex ante guidance, but as vehicles of ex post legitimation of decisions reached without regard for the rules.” These quotes are illustrative of the classic divide between what has generally come to be called legal formalism and legal realism.

In his new book, Beyond the Formalist-Realist Divide: The Role of Politics in Judging, Brian Tamanaha, a professor of law at the Washington University School of Law in St. Louis, seeks to demonstrate that this conventional account of a radical change in the understanding of the nature of common law jurisprudence from formalism to realism in the 1920s and 1930s is profoundly wrong. This effort follows years of excellent work in this area by Professor Tamanaha, including his 2006 book, Law as a Means to an End: Threat to the Rule of Law, and his 2004 book, On the Rule of Law: History, Politics, Theory.

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*     Professor of Law, Columbus School of Law, The Catholic University of America. J.D., 1983, University of Virginia Law School; B.A., 1979, Haverford College.

Virtual Adultery: No Physical Harm, No Foul?

Kathryn Pfeiffer *

In 2007, Ric Hoogestraat’s picture-perfect marriage to his partner, Tenaj—which included a house with a mortgage, pets, and pastimes such as riding together on his motorcycle—earned notoriety precisely for the normalcy it exemplified. Their relationship, in fact, was anything but normal—because Tenaj was Ric’s virtual wife whom he met and interacted with daily through a computer game—and Ric’s real marriage was suffering. His actual wife, Sue Hoogestraat, felt “widowed” by her husband’s virtual life and did not expect him to return to her soon: “This other life is so wonderful; it’s better than real life. Nobody gets fat, nobody gets gray. The person that’s left can’t compete with that.” Although this type of behavior affects the marital relationship, the law does not consider it actionable conduct. With so much socially driven media available, however, it is difficult to draw a bright line between reality and fantasy. For example, an ABC News survey conducted in 2004 found that forty-two percent of women and twenty-five percent of men considered visiting websites with sexual content to be cheating. These findings covered only passive Internet sites—they did not include interactive sites in which a spouse engaged with a third person, like Ric and Tenaj.

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*    Law Clerk, Hon. Glen A. Huff, Virginia Court of Appeals. J.D., 2011, University of Richmond School of Law; B.A., 2006, Davidson College. This comment was a first-place winner of the 2011 McNeill Writing Competition sponsored by the McNeill Law Society of the University of Richmond School of Law. This comment benefited from the guidance of Meredith Harbach, Assistant Professor of Law, University of Richmond School of Law.

Civil Practice and Procedure

John R. Walk *

Andrew P. Sherrod **

This article surveys recent significant developments in Virginia civil practice and procedure. Specifically, the article discusses opinions of the Supreme Court of Virginia from June 2010 through June 2011 addressing civil procedure topics; significant amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period; and legislation enacted by the Virginia General Assembly during its 2011 session that relates to civil practice.

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*  Shareholder, Hirschler Fleischer, P.C., Richmond, Virginia; J.D., 1980, University of Richmond School of Law; B.A., 1977, College of William & Mary. Mr. Walk is an Adjunct Professor at the University of Richmond School of Law.

** Principal, Hirschler Fleischer, P.C., Richmond, Virginia; J.D., 2000, University of North Carolina at Chapel Hill School of Law; B.A., 1996, Hampden-Sydney College.

Corporate and Business Law

Laurence V. Parker, Jr. *


In the 2011 session, the Virginia General Assembly passed House Bill 2358, Benefit Corporations, to be codified as article 22 (the “Benefit Corporations Article”) of the Virginia Stock Corporation Act (“VSCA”). The Benefit Corporations Article is largely based on legislation prepared in other states and allows a Virginia corporation to elect in its articles of incorporation to be treated as a “benefit corporation.” These for-profit corporations are required to pursue not only profitability but also a general public benefit and, if one so elects, one or more specific public benefits. In Section II of this article, the author discusses the Benefit Corporations Article in detail. Section III examines some aspects of the Benefit Corporations Article for social entrepreneurs and practitioners to consider before making the benefit corporation election. In Section IV, the author asks whether practitioners and social entrepreneurs can achieve some of the same corporate governance objectives by private ordering without electing to be treated as benefit corporations. Finally, Section V concludes with some observations about the Benefit Corporations Article itself.

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* Partner, Williams Mullen, Richmond, Virginia; J.D., 2003, University of Richmond School of Law; M.B.A., 2003, The Robins School of Business, University of Richmond; B.A., 1995, University of Virginia.

Criminal Law and Procedure

Virginia B. Theisen *

Once more, the past year yielded a wealth of developments in the area of criminal law and procedure. The author has endeavored to cull the most significant decisions and legislative enactments, with an eye toward the “takeaway” from a case rather than a discussion of settled principles.

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*   Senior Assistant Attorney General, Criminal Litigation Section, Office of the Attorney General, Commonwealth of Virginia; J.D., 1984, Marshall-Wythe School of Law, College of William & Mary; B.A., 1981, College of William & Mary.