March 19, 2012
Author of FJC’s Study of 12(b)(6) Motions Posts Response to Academic Criticism
Joe S. Cecil, the primary author of the Federal Judicial Center’s empirical study of the impact of Iqbal, just posted (on SSRN) a response to concerns expressed about that study (including criticisms by Professors Lonny Hoffman, Ray Brescia, Jonah Gelbach, and me). I have not had the opportunity to read it closely, having just received it, but it appears to be a thoughtful and gracious response. The abstract reads:
This paper responds to comments regarding the Federal Judicial Center’s recent studies of the resolution of motions to dismiss for failure to state a claim. Those studies, undertaken at the request of the Judicial Conference Advisory Committee on Civil Rules, found a statistically significant increase in the rate at which defendants file motions to dismiss following the Supreme Court decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. The studies also found no statistically significant increase in the rate of grants of motions to dismiss without leave to amend, except in cases involving challenges to financial instruments such as mortgages, and no statistically significant increase in cases terminated by such motions. Several scholars have expressed reservations regarding these findings and raised a number of specific issues regarding the research. This paper responds to the following issues:
• Professor Hoffman’s concerns about our use of statistical analysis in general, and the use of multinomial statistical models in particular;
• Professor Moore’s concerns about the exclusion from our study of pro se cases and cases asserting affirmative defenses, and the findings of her most recent study of the outcome of motions to dismiss;
• Professor Brescia’s recent study finding an increase in grant rate of motions to dismiss in employment and housing discrimination cases; and
• Professor Gelbach’s incorporation of our findings into an economic model of pretrial litigation that attempts to estimate the overall effect on settlement and access to discovery.
I continue to believe that our findings represent the most accurate statement of the federal district courts’ response to these Supreme Court decisions, but acknowledge that this response has continued to evolve since we conducted our study. I propose a study of all dispositive motions that will, among other things, examine the interaction between motions to dismiss for failure to state a claim and motions for summary judgment.
Mr. Cecil and I had numerous communications back and forth in which we clarified our respective positions. Some of his points on my study are well-taken, although I do not agree with them all. For me, the bottom line is that the FJC has taken the concerns about its study very seriously, and I am glad to have participated in this debate.
As noted in the abstract, Mr. Cecil anticipates that the FJC will soon launch another empirical study dealing with dispositive motion practice generally. A very rough timeline envisions a report by 2013.