February 18, 2008
Twombly's Impact: Interview with Kendall Hannon
Click the link at the bottom of this post to listen to my interview with Kendall Hannon about the results of a survey he conducted on Twombly's impact on 12(b)(6) dismissal rates. The results are interesting and the work Kendall put into the project is staggering. Kendall is the incoming EIC of the Notre Dame Law Review, and, based on his Twombly project, we can expect great things from him in the future. The results of his survey will be published as a case note in the Notre Dame Law Review but you can read his paper--Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions--in its entirety here. Another thank you to Scott Dodson for leading us to Kendall's valuable resource.--Counseller
February 18, 2008 | Permalink
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Thank you for bringing this piece to our attention. Noticing that the study is focused on reported cases appearing in the Westlaw database, is there a possibility that at least part of the spike in Twombly dismissals for civil rights cases could be due to an increased willingness to publish opinions in these cases now that the Supreme Court has legitimated a practice that may have previously occurred below the radar? That is, could it be the case that prior to Twombly, courts would be less likely to publish a dismissal in a civil rights case that conflicted with the spirit of Swierkiewicz but now with Twombly such apprehension is removed, resulting in greater reporting of something that was taking place to some extent before? I suppose one way to evaluate this possibility would be to look at unreported civil rights dismissals via PACER (and possibly via Lexis-only reported cases) to see what has been going on there. Unfortunately, I'd imagine such a review would be of such a scale as to be difficult for someone to accomplish in a reasonable period of time.
Posted by: Benjamin Spencer | Feb 20, 2008 3:48:33 AM
Actually, that thought had entered my mind. One way I undertook to examine whether that was the case was to look at the percentage of cases in the Conley set that were "Civil Rights" cases and compare that to the percentage of cases in the Twombly set that were "Civil Rights" cases. I just re-ran the numbers (as I had not recorded them anywhere), and here is what I get:
686 of the 2212 Conley cases were either Civil Rights cases (OR included a civil rights cause of action in the case): thus, 31.0%
278 out of 1075 Twombly cases were either Civil Rights cases or included a civil rights cause of action: thus, 25.9%
Now, what you are suggesting is still very possible-- it is hard to know what goes into a given judge choosing to report a decision or not. But it seems to me that had the Civil Rights cases constituted a larger portion of all the Twombly cases than they had under Conley, that would support the idea you suggest.
Ideally, given unlimited time and resources, a PACER analysis of ALL cases would be beneficial. Unfortunately, my duties as EiC will probably preclude me from conducting that research for the foreseeable future...
Posted by: Kendall Hannon | Feb 20, 2008 10:07:13 PM