pro se

In 1984 the divestiture of AT&T's local telephone business created seven regional service monopolies known as Regional Bell Operating Companies or Incumbent Local Exchange Carriers. More than a decade later Congress enacted the Telecommunications Act of 1996 which restructured local telephone markets and imposed duties on the ILECs to facilitate entry by competitive local exchange carriers through resale of services at wholesale rates, leasing of unbundled network elements, or interconnection of facilities. William Twombly and Lawrence Marcus filed suit in the United States District Court for the Southern District of New York on behalf of a putative class of all subscribers of local telephone and high-speed internet services from February 8, 1996 to the present. They named as defendants four consolidated ILECs: BellSouth Corporation, Qwest Communications International Inc., SBC Communications Inc., and Verizon Communications Inc. The complaint alleged that these ILECs conspired to restrain trade by engaging in parallel conduct to inhibit CLECs, including unfair agreements for network access, inferior connections, overcharging, and billing practices designed to sabotage CLEC customer relations. The complaint further alleged that the ILECs agreed not to compete against one another in their respective territories. This agreement was inferred from their common failure to pursue business opportunities in contiguous markets and from a statement by Qwest CEO Richard Notebaert that competing in another ILEC's territory might be a good way to turn a quick dollar but that does not make it right. The complaint asserted that in light of the absence of meaningful competition among the ILECs and their parallel course of conduct the defendants had entered into a contract combination or conspiracy to prevent competitive entry and to allocate customers and markets. The district court dismissed the complaint for failure to state a claim. It concluded that the alleged parallel behavior was fully explained by each ILEC's independent interest in defending its own territory and that the complaint did not allege facts suggesting the decision to refrain from competing elsewhere was contrary to the ILECs' apparent economic interests. The Court of Appeals for the Second Circuit reversed, holding that plus factors need not be pleaded and that allegations of parallel conduct suffice if they leave open the possibility of collusion. The Supreme Court granted certiorari to address the proper standard for pleading an antitrust conspiracy through allegations of parallel conduct.

In October 1984, Sandra Ann Craig was charged in the Circuit Court for Howard County, Maryland, with child abuse, first- and second-degree sexual offenses, perverted sexual practice, and battery. The named victim in each count was a six-year-old girl who had attended a kindergarten and day-care center owned and operated by Craig. Before trial, the State moved to invoke Maryland Courts and Judicial Proceedings Code Annotated § 9-102(a)(1)(ii) (1989). That statute permits a judge to receive the one-way closed-circuit television testimony of an alleged child victim in a child-abuse case upon a finding that live, in-court testimony would cause the child serious emotional distress such that the child cannot reasonably communicate. At a December 12, 1985 hearing, the trial court heard expert testimony that the named victim and three other children expected to testify would suffer serious emotional distress if required to testify in the defendant's presence. The trial court further found that the children would not be able to communicate effectively with the jury or the court in the defendant's presence. The trial court made individualized findings and therefore permitted the four children to testify via one-way closed-circuit television from a separate room. Craig was convicted on all counts. The Maryland Court of Special Appeals affirmed the convictions. The Maryland Court of Appeals reversed. The United States Supreme Court granted certiorari.

In September 1994 Christy Brzonkala enrolled as a student at Virginia Polytechnic Institute and State University. Within thirty minutes of meeting fellow students Antonio Morrison and James Crawford, both members of the varsity football team, Brzonkala alleges that the two men assaulted and repeatedly raped her. Morrison allegedly told Brzonkala after the attack that she had better not have any diseases. He later announced in a dormitory dining room that he liked to get girls drunk and made other vulgar remarks about women. Brzonkala became severely emotionally disturbed and depressed after the incident. She sought assistance from a university psychiatrist who prescribed antidepressant medication. She stopped attending classes and withdrew from the university. In early 1995 she filed a complaint against Morrison and Crawford under the university's Sexual Assault Policy. Virginia Tech conducted a hearing under its Sexual Assault Policy and a second hearing under its Abusive Conduct Policy. The first found Morrison guilty of sexual assault and suspended him for two semesters. The second hearing again found him guilty but changed the offense description to using abusive language. University officials later set aside the punishment. In December 1995 Brzonkala sued Morrison, Crawford, and Virginia Tech in the United States District Court for the Western District of Virginia. Her complaint alleged that the attack violated 42 U.S.C. §13981, the civil remedy provision of the Violence Against Women Act of 1994, which creates a federal cause of action for compensatory and punitive damages against persons who commit crimes of violence motivated by gender. She also asserted Title IX claims against the university. The district court dismissed the Title IX claims for failure to state a claim. It also dismissed the §13981 claim on the ground that Congress lacked authority to enact the provision under either the Commerce Clause or Section 5 of the Fourteenth Amendment. A divided panel of the Fourth Circuit reversed in part, but the en banc Fourth Circuit affirmed the district court's conclusion that Congress lacked constitutional authority to enact §13981. The Supreme Court granted certiorari to determine the constitutionality of the civil remedy provision.

In 1969 Congress established the United States Tax Court as an Article I court of record and authorized it to appoint commissioners, later renamed special trial judges, to assist its judges. The Tax Court consists of nineteen judges appointed by the President with Senate confirmation to fifteen-year terms. In 1984 and 1986 Congress expanded the Chief Judge's authority to assign special trial judges to hear four categories of proceedings, including any other proceeding the Chief Judge may designate, though only regular Tax Court judges may enter final decisions in the fourth category. Several petitioners deducted approximately $1.5 billion in losses from a tax shelter scheme on their federal income tax returns. In March 1982 they petitioned the Tax Court for review of deficiency determinations. Their cases were assigned to Tax Court Judge Richard C. Wilbur and trial began in 1984. Judge Wilbur became ill in November 1985. The Chief Judge assigned Special Trial Judge Carleton D. Powell to preside over the trial as evidentiary referee with proceedings videotaped. When Judge Wilbur retired effective April 1, 1986, the cases were reassigned to Judge Powell with petitioners' consent for preparation of written findings and an opinion. Judge Powell concluded that the tax shelter consisted of sham transactions and that petitioners owed additional taxes. The Chief Judge adopted Judge Powell's opinion as the opinion of the Tax Court. Petitioners appealed to the Court of Appeals for the Fifth Circuit, which affirmed the Tax Court's decision. Petitioners contended on appeal that assignment of their complex cases to a special trial judge exceeded statutory authority and violated the Appointments Clause. The Fifth Circuit held that the constitutional claim could be raised for the first time on appeal but rejected it on the merits, finding waiver by consent. The Supreme Court granted certiorari to address the statutory and constitutional questions.