Thursday, August 7, 2014
In Walsh v. U.S. Bank, N.A., No. A13-0742 (Aug. 6, 2014), the Minnesota Supreme Court held:
[W]e now decline to engraft the plausibility standard from Twombly and Iqbal onto our traditional interpretation of Minn. R. Civ. P. 8.01. We decline to do so despite the fact that the relevant text of Fed. R. Civ. P. 8(a)(2) is identical to the text of Minn. R. Civ. P. 8.01. . .
. . . A claim is sufficient against a motion to dismiss for failure to state a claim if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.
Hat tip: James Pielemeier
Wednesday, August 6, 2014
Now, I know you were just sayng to yourself, "Why hasn't another article about the empirical study of Twombly and Iqbal come out recently? I'm having withdrawal symptoms." Rejoice -- here it is.
Professor Jonah Gelbach of the University of Pennsylvania Law School has published in the most recent issue of the Stanford Journal of Complex Litigation (and earlier posted on SSRN) his article Can the Dark Arts of the Dismal Science Shed Light on the Empirical Reality of Civil Procedure?
Empirical questions in civil procedure are too important to be answered as if motivated people weren’t involved in the legal system. Parties don’t conduct their primary behavior that way, lawyers don’t plead or brief that way, and judges don’t decide cases that way. We ought not to study litigation that way, either. This paper is a step toward a better alternative.
Empirical researchers must take seriously the fact that litigation involves human beings, who are motivated and have agency. To make this point concrete, I first step outside the realm of civil procedure and illustrate the importance of accounting for human agency in empirical research. I use the canonical problem of demand estimation in economics to show how what I call the “urn approach” to empirical work fails to uncover important empirical relationships by disregarding behavioral aspects of human action.
I then show how these concerns permeate a prominent empirical issue in contemporary civil procedure debates: the changes in pleading policy wrought by Bell Atlantic, Corp. v. Twombly and Ashcroft v. Iqbal. Revisiting my own earlier work, I embed the question of how changes in the pleading standard will affect case outcomes in a broad behavioral framework that takes parties’ agency seriously. In the process, I address recent critiques, both of the very idea of using behavioral frameworks to understand civil litigation policy changes, and of my use of real-world litigation data collected by the Federal Judicial Center. These criticisms implicate all aspects of the process of empirical research: the notion of using a behavioral framework at all, the type of data needed, and the question of how best to estimate effects that the behavioral framework indicates are important, given the data. As I show, these criticisms are straightforwardly (if verbosely) refuted on the merits.
The alternative to taking seriously the behavioral context created by the civil justice system — what has occurred so far in too much of the debate over Twombly and Iqbal — is, as one critic of early 20th-century empirical research by legal scholars once put it, “a mindless amassing of statistics without reference to any guiding theory whatsoever.” To do better, we will need to take behavior seriously in studying civil litigation.
Friday, July 25, 2014
In a 4-3 decision, the Wisconsin Supreme Court has adopted the plausibility pleading standard of the U.S. Supreme Court's opinion in Bell Atlantic Corp. v. Twombly. Data Key Partners v. Permira Advisers LLC, No. 2012AP1967 (Wis. July 23, 2014).
The court reversed the Wisconsin Court of Appeals' ruling that plaintiffs had alleged sufficient facts to show breach of fiduciary duty against the defendants. Wisconsin's pleading rule requires a complaint to contain "[a] short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief." Wis. Stat. § 802.02(1)(a).
The court held that "[p]laintiffs must allege facts that, if true, plausibly suggest a violation of applicable law," stating that "Twombly is consistent with our precedent." The court also asserted that Twombly had overruled Conley v. Gibson. (In my view, however, Twombly only overruled Conley's "no set of facts" standard, not the entire opinion.)
Justice Shirley Abramson, for two other justices, dissented.
I would follow Wisconsin law and conclude that as a general rule, parties need not plead specific facts at the motion-to-dismiss phase. In the instant case, although the plaintiffs raised the business judgment rule in their complaint, the plaintiffs also set forth sufficient facts to plead around the rule and provide notice to the defendants of the claim being alleged.
. . . Under Twombly/Iqbal, federal district courts have increased the rate at which they grant motions to dismiss.
No Wisconsin case has adopted the rule as stated in Twombly and Iqbal. Twombly was not argued or briefed in the instant case. The majority opinion relies on the Twombly heightened pleading standard without any briefing or argument. I have written before that this court should give counsel the opportunity to develop arguments before the court in the adversarial system. . . .
Friday, June 20, 2014
SCOTUS: IRS Summons Challenger Must Show Facts Giving Rise to Plausible Inference of Improper IRS Motive
The IRS examined the tax returns of Dynamo Holdings Limited Partnership, and issued summonses to the respondents, "four individuals associated with Dynamo whom the Service believed had information and records relevant to Dynamo’s tax obligations. None of the respondents complied with those summonses."
The IRS instituted proceedings in District Court to compel the respondents to comply with the summonses. The IRS submitted an investigating agent’s declaration that the testimony and records sought were necessary to “properly investigate the correctness of [Dynamo’s] federal tax reporting” and that the summonses were “not issued to harass or for any other improper purpose.” In reply, the respondents pointed to circumstantial evidence suggesting that the IRS had “ulterior motives” for issuing the summonses: to “punish [Dynamo] for refusing to agree to a further extension of the applicable statute of limitations,” and to “evad[e] the Tax Court[’s] limitations on discovery.” Accordingly, the respondents asked for an opportunity to question the agents about their motives.
The District Court ordered the respondents to comply with the summonses. The Court of Appeals for the Eleventh Circuit reversed, holding that a simple “allegation of improper purpose,” even if lacking any “factual support,” entitles a taxpayer to “question IRS officials concerning the Service’s reasons for issuing the summons.”
The Supreme Court, in a unanimous opinion authored by Justice Kagan, vacated the Eleventh Circuit's opinion and remanded, holding that the Eleventh Circuit had applied an incorrect legal standard:
A person receiving an IRS summons is . . . entitled to contest it in an enforcement proceeding. . . . As part of the adversarial process concerning a summons’s validity, the taxpayer is entitled to examine an IRS agent when he can point to specific facts or circumstances plausibly raising an inference of bad faith. Naked allegations of improper purpose are not enough: The taxpayer must offer some credible evidence supporting his charge. But circumstantial evidence can suffice to meet that burden; after all, direct evidence of another person’s bad faith, at this threshold stage, will rarely if ever be available. And although bare assertion or conjecture is not enough, neither is a fleshed out case demanded: The taxpayer need only make a showing of facts that give rise to a plausible inference of improper motive. That standard will ensure inquiry where the facts and circumstances make inquiry appropriate, without turning every summons dispute into a fishing expedition for official wrongdoing. . . . But that is not the standard the Eleventh Circuit applied. . . . [T]he Court of Appeals viewed even bare allegations of improper purpose as entitling a summons objector to question IRS agents.
United States v. Clarke, No. 13-301 (U.S. June 19, 2014).
Tuesday, May 27, 2014
Today the Supreme Court issued a unanimous decision in Wood v. Moss, with Justice Ginsburg authoring the opinion for the Court. As covered earlier here, Wood v. Moss is a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his 2004 visit to a restaurant in Oregon. The plaintiffs claim that the defendants, who were secret service agents, violated their First Amendment rights by moving them farther away from the President than a similar group that was expressing support for the President.
In today’s decision, the Court unanimously rules that the defendants are protected by qualified immunity. To most, this conclusion did not come as a surprise. For many proceduralists, however, the case was of particular interest because of its potential effect on pleading standards in the wake of Twombly and Iqbal. Here’s how Justice Ginsburg puts things in footnote 5: “In ruling on a motion to dismiss, we have instructed, courts ‘must take all of the factual allegations in the complaint as true,’ but ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).” And on page 12: “[U]nder the governing pleading standard, the ‘complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ Iqbal, 556 U.S., at 678 (internal quotation marks omitted).”
Part II.B of the opinion contains the most detailed discussion of qualified immunity and its requirement that a plaintiff’s claim be based on a right that was “clearly established at the time of the challenged conduct.” [p.12]. Among other things, Justice Ginsburg writes:
“No decision of which we are aware ... would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation to ensure that groups with different viewpoints are at comparable locations at all times. ... No clearly established law, we agree, required the Secret Service to interfere with even more speech than security concerns would require in an attempt to keep opposing groups at roughly equal distances from the President. And surely no such law required the agents to attempt to maintain equal distances by prevailing upon the President not to dine at the Inn. [pp.14-15 (citations and internal quotation marks omitted)]”
Part III of the opinion addresses a potentially distinct theory of liability, and that part of the opinion may prove more instructive on pleading standards generally. Part III begins: “The protesters allege that, when the agents directed their displacement, the agents acted not to ensure the President’s safety from handguns or explosive devices. Instead, the protesters urge, the agents had them moved solely to insulate the President from their message, thereby giving the President’s supporters greater visibility and audibility.” [pp.15-16] Justice Ginsburg does recognize the possibility that “clearly established law proscribed the Secret Service from disadvantaging one group of speakers in comparison to another if the agents had no objectively reasonable security rationale for their conduct, but acted solely to inhibit the expression of disfavored views.” [p.16 (citations and internal quotation marks omitted)] She rejects this theory, however, noting that a map of the relevant area that the plaintiffs had included in their complaint “undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions”; the map “corroborates that, because of their location, the protesters posed a potential security risk to the President, while the supporters, because of their location, did not.” [p.16]
Although the plaintiffs “make three arguments to shore up their charge that the agents’ asserted security concerns are disingenuous,” [p.16] Justice Ginsburg is not persuaded. In particular, she writes:
“[A]s the map attached to the complaint shows, see supra, at 4, when the President reached the patio to dine, the protesters, but not the supporters, were within weapons range of his location. See supra, at 14. Given that situation, the protesters cannot plausibly urge that the agents had no valid security reason to request or order their eviction.” [p.18 (citations and internal quotation marks omitted)]
One of the many questions that has vexed courts, commentators, and practitioners after Twombly and Iqbal is how to evaluate allegations about a defendant’s intent. Although the 2002 decision in Swierkiewicz v. Sorema suggested a very lenient approach to such allegations, many have read Iqbal – which also involved allegations of discriminatory animus – to require a stricter approach. At first glance, Wood does not seem to provide a conclusive resolution. Although the Court rejects the plaintiffs’ viewpoint-discrimination theory, Justice Ginsburg relies heavily on the fact that material in the complaint itself – the map of the relevant area – “undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions.” [p.16] This is not likely be a regular occurrence in cases involving discriminatory intent. Another feature of Wood may be even more important. Given Justice Ginsburg’s reasoning regarding qualified immunity, the plaintiffs would have had to show that “the agents had no objectively reasonable security rationale.” [p.16] Part III of the opinion, therefore, did not hinge on the premise that viewpoint discrimination played no role at all in the defendants’ decision; rather – as a matter of the substantive law governing the defendants’ qualified immunity defense – the presence of an objectively reasonable security rationale doomed the plaintiffs’ claims even if viewpoint discrimination also played a role.
PS: Readers may have noticed Adam Liptak’s recent New York Times article describing how Supreme Court opinions can be revised by the Justices after they are initially issued – sometimes years later. For what it’s worth, then, I’m including in this post not only the relevant link to the opinion on the Supreme Court’s website, but also a downloaded version of the opinion as it originally appeared there this morning:
Corina D. Gerety and Brittany K.T. Kauffman, of The Institute for the Advancement of the American Legal System at the University of Denver, have published a Summary of Empirical Research on the Civil Justice Process: 2008-2013.
An explanation of its Scope provides, "This report provides a synthesis of the relevant empirical research on the civil justice process released from 2008 to 2013. In addition to IAALS research, it contains studies conducted by a variety of organizations and individuals, including the Federal Judicial Center, the National Center for State Courts, the RAND Corporation, and others. We, the authors, refer to 39 studies in total, representing a relatively even mix of case file/docket studies and surveys/interviews."
Wednesday, April 9, 2014
Alex Reinert (Cardozo) has published on SSRN a draft of his article, The Burdens of Pleading, which will be published in the University of Pennsylvania Law Review. Here is the abstract:
The changes to pleading doctrine wrought by Bell Atlantic v. Twombly and Ashcroft v. Iqbal have been criticized on many grounds. As many commentators have noted, the plausibility pleading doctrine introduced by these cases is consistent with other procedural reforms that have the effect of limiting access of putative plaintiffs to federal civil adjudication. In this Article, I argue that Twombly and Iqbal are more than just the most recent examples of anti-litigation reforms. Plausibility pleading asks federal courts – for the first time since the advent of the Federal Rules of Civil Procedure – to use their "judicial experience and common sense" to assess the likelihood of a claim’s success prior to discovery. But the very characteristics of the procedural changes leading up to Twombly and Iqbal – fewer trials, an increase in private adjudication such as arbitration, pervasive secrecy, and increased use of summary judgment – also make it far less likely that judges will have the experience necessary to reliably apply plausibility pleading. In the absence of relevant information, judges are likely to fall back on heuristics that will take them farther from an accurate decision on the merits. The result, I contend –one that is confirmed by the empirical data available to date – will be an increased dismissal of cases that is essentially random rather than merit-based.
Wednesday, March 26, 2014
Here’s the transcript of today’s Supreme Court oral argument in Wood v. Moss. It’s a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his visit to a restaurant in Oregon. They allege that the defendants, who were secret service agents, engaged in unconstitutional viewpoint discrimination by moving them farther away from the President than a similar group that was expressing support for the President.
The crux of the defendants’ position is that they are protected by qualified immunity, but the case could have ramifications for pleading standards more generally. The argument included quite a bit on Iqbal, and there were several questions about the discovery that would likely ensue if the claims were allowed to move forward.
PS: Here is an analysis of the oral argument by Lyle Denniston (SCOTUSblog).
Tuesday, March 25, 2014
Expanding their earlier map of SCOTUS pleading cases, Scott Dodson and Colin Starger have now produced a seven-minute video visually demonstrating the relationship between the cases. You can watch this interesting endeavor here.
A more traditional form of the paper will appear this spring in the Federal Courts Law Review.
Friday, February 14, 2014
The NBA starts its all-star break today. The U.S. Supreme Court is on break as well, and it too is right at the midpoint of the season. The Term has already been quite active on the civil procedure and federal courts front, with decisions on personal jurisdiction, Younger abstention, transfer of venue, the Class Action Fairness Act, and appellate jurisdiction. And there’s more on the horizon:
- Walden v. Fiore (venue and personal jurisdiction);
- Halliburton v. Erica P. John Fund (class actions);
- Wood v. Moss (on qualified immunity and, perhaps, pleading standards more generally);
- Highmark v. Allcare and Octane Fitness v. Icon Health (two cases on awarding attorneys’ fees in patent cases);
- Petrella v. MGM (laches in civil copyright claims)
- Executive Benefits Insurance Agency v. Arkison (Article III and bankruptcy proceedings);
- UBS Financial Services v. Union de Empleados de Muelles (Rule 23.1’s pre-suit demand requirement)
Why do we pay so much attention to these cases? For most court-watchers, it’s not because there is a strong interest in whether a Massachusetts gravel supply company underpaid its benefit fund obligations. Rather, it’s because of what the Supreme Court’s decisions mean going forward. Because of stare decisis, judicial decisions can prospectively bind future courts just as an Act of Congress or a Federal Rule of Civil Procedure can. In many areas of procedure, Supreme Court decisions may be the most significant lawmaking acts we’re going to see.
With that in mind, I thought I would share a link to my recent article, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, 99 Virginia L. Rev. 1737 (2013). The article was driven in part by the struggle to figure out the precedential effect of controversial Supreme Court decisions like Wal-Mart and Iqbal. But I try to tackle more generally the question of what parts of a judicial decision should actually create binding law, and in what way. Here’s the abstract:
Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions — Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal — turn this conventional wisdom on its head. In both cases, what the Court said about the governing rules was not inherently controversial, and would leave courts with considerable flexibility going forward. But what the Court did in applying those rules — the ultimate results in Wal-Mart and Iqbal — could be very destabilizing if stare decisis mandates consistency with those results in future cases.
This article assesses competing approaches to stare decisis, and argues that the lawmaking content of a judicial decision should be only the rules that the court states in deciding the case. While the end result may be instructive, enlightening, or valuable for any number of reasons, it should not create binding obligations on future courts as a matter of stare decisis. A rules-only approach is an unconventional position (even those who favor rule-based stare decisis typically presume that consistency with results is also required). But it strikes the optimal balance. To infer binding obligations from results alone creates a risk that — as with Wal-Mart and Iqbal — future courts will be forced to intuit more radical legal changes than the precedent-setting court actually embraced. Put simply, a judicial decision should create binding law only to the extent that it says what the law is. Unless and until new legal rules are declared (whether by the judiciary in later cases or by legislation), courts should be free to operate within the existing legal framework, without being required to reconcile their decisions with the mere results of earlier ones.
Thanks again to the editors at the Virginia Law Review, who did a fantastic job on the article, and to the many colleagues who gave me such terrific feedback and suggestions.
Thursday, February 13, 2014
Victor D. Quintanilla has published Critical Race Empiricism: A New Means to Measure Civil Procedure, 3 U.C. Irvine L. Rev. 187 (2013).
From the Introduction:
In this Article, I first discuss why social psychology offers a fertile source for both theory and methods to explore CRT. Drawing on social-psychological theory and methods, I then conduct an empirical legal study of judicial decision making under the U.S. Supreme Court's new, highly subjective pleading standard. Although one of my previous projects yielded similar findings, I have updated my empirical legal analysis in three ways. First, I have extended the time horizon from eighteen months to twenty-four months, increasing the sample size of cases I analyze, and thereby increasing the power of my study. Second, I now compare and contrast how White and Black judges apply both the old and new pleading standards. This comparison offers a baseline to evaluate whether the new pleading standard produces differences in how White and Black judges decide motions to dismiss Black plaintiffs' claims of race discrimination. Third, to assess whether the race of federal judges predicts how they apply the new pleading standard, I conducted multiple and sequential regressions, which pitted judges' race against their political ideology.
This enhanced empirical legal study supports the conclusion that the new pleading standard serves as a context for aversive racism, implicit bias, and lay theories of racism to operate against stereotyped-group members who assert claims of discrimination. Under notice pleading, White and Black judges decided discrimination claims similarly; yet under plausibility pleading, White and Black judges decided these claims differently. White judges were much more likely to dismiss the claims of stereotyped-group members, even after controlling for political ideology. This strongly suggests that, because plausibility pleading requires judges to draw on their “judicial experience and common sense,” federal judges are drawing on their lay theories of discrimination, their priors, their schemas, and their stereotypes when judging the plausibility of discrimination claims. These findings also suggest that implicit bias is operating against Black plaintiffs. This empirical study is but one of many means to harness empirical methods to explore CRT. The study, moreover, illustrates how infusing CRT with empirical legal methods illuminates implicit bias in legal decision making and the process by which race and law interact.
Saturday, February 1, 2014
Suja Thomas' recent article, How Atypical, Hard Cases Make Bad Law (See, e.g., the Lack of Judicial Restraint in Wal-Mart, Twombly, and Ricci), was posted on SSRN some months ago, but has just been published at 48 Wake Forest L. Rev. 989.
Despite the oft-mentioned goal of judicial restraint, courts have few effective tools to realize it. Stare decisis provides some guidance on whether legal change should be made where there is relevant precedent, but courts do not always conduct a stare decisis analysis. And for questions for which precedent and thus stare decisis is not relevant, beyond malleable tools, including those of statutory and constitutional interpretation, the courts have no guidance on whether to make legal change. Accordingly, many scholars have argued that judicial restraint is rhetoric not reality. Possibly unsurprisingly then, several recent high profile Supreme Court cases including Twombly, Wal-Mart, and Ricci, have exhibited what may be characterized as a lack of judicial restraint. While to date each case has been criticized for the specific legal change made in the case, an unrecognized lack of restraint ultimately ties all of the cases together. In the cases, the Court made legal change motivated by extraordinary circumstances, and no doctrine of judicial restraint prevented the change. This Article argues for a new doctrine of judicial restraint — the “atypical doctrine” — that the Court should not make legal change in cases, like Twombly, Wal-Mart, and Ricci, where legal change is motivated by oddball or atypical facts, and the change would affect typical cases. The Article contributes to the important question of when the Court should make legal change by beginning a discussion on how judicial restraint can be strengthened.
Thursday, November 14, 2013
Scott Dodson and Colin Starger have posted a one-page chart of Supreme Court pleading decisions. FRCP 8 Pleading: Supreme Court Doctrine 1957-2011.
We map Twombly and Iqbal, along with their progenitors and their progeny, over time. Our depiction reveals that, prior to 2005, the Court maintained a relatively consistent adherence to very liberal pleading, with one outlier (Papasan), which was not cited during this time. From 2005 to 2009, the Court's pleading standards became stricter. Twombly resurrected Papasan and questioned many of the prior decisions, and Iqbal represents the nadir of pleading liberality. The one outlier is Erickson, which is potentially distinguishable as a pro se case. In 2011, however, the Court seemed to relax pleading again, upholding complaints in two cases, Matrixx and Skinner. Skinner even cited to the 2002 case of Swierkiewicz but not to either Twombly or Iqbal.
Wednesday, October 2, 2013
Now in print is an essay by Prof. Benjamin Spencer (Washington & Lee) entitled Pleading and Access to Civil Justice: A Response to Twiqbal Apologists, 60 UCLA L. Rev. 1710 (2013). Here’s the abstract:
Monday, September 16, 2013
Thursday, September 12, 2013
The Eighth Circuit's decision last week in Horras v. American Capital Strategies, Ltd. (No. 12-3886), __ F.3d __, 2013 WL 4711389, includes a partial dissent by Judge Colloton that is worth a read for his approach to pleading standards after Iqbal and Twombly. (Hat tip to Ryan Koopmans, who covers the case in this post.) The majority in Horras affirms the district court's dismissal of Horras’s complaint. Judge Colloton dissents as to Horras's claim for breach of fiduciary duty.
Judge Colloton writes that while the Supreme Court's approach to pleading in Iqbal and Twombly is an “important development,” courts “must be careful not to embellish it.” Citing Erickson, Swierkiewicz, Form 11, and articles by Judge, Dean, and chief drafter of the original FRCPs Charles E. Clark, he concludes: “Under the simplified pleading standard of Rule 8(a), I think the complaint here was sufficient to give ACS fair notice of the fiduciary duty claim that Horras has amplified in his briefing.”
Here are some excerpts from Judge Colloton's opinion:
Saturday, July 27, 2013
David Freeman Engstrom of Stanford Law School has posted on SSRN his essay, "The Twiqbal Puzzle and Empirical Study of Civil Procedure."
This essay, written for a Stanford Law Review issue exploring “The Empirical Revolution in Law,” offers a critical assessment of the large body of empirical scholarship examining the effect of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on judicial and litigant behavior and then uses the critique to make some broader observations about the past, present, and future of empirical study of civil procedure.
Sunday, June 2, 2013
Luke Meier of Baylor University Law School has posted on SSRN a new article in his probability/confidence series, entitled "Probability, Confidence, and Twombly's Plausibility Standard."
This Article offers a fresh perspective on the pleading standard of plausibility. The consensus regarding plausibility is that it requires a judge to determine the probability of the plaintiff’s allegations. This perspective has led to much of the criticism of the plausibility standard. In reality, plausibility requires a judge to perform an analytically distinct inquiry, which I term a confidence analysis. Recognizing this fact does not immunize plausibility from all of the criticism it has received. It does, however, clarify the analysis required under the standard, which should alleviate many of the concerns associated with plausibility.
Wednesday, May 22, 2013
Victor Abel Pereyra and Benjamin Sunshine, of University of Illinois College of Law, have posted on SSRN their paper Access-to-Justice v. Efficiency: An Empirical Study of Settlement Rates After Twombly and Iqbal.
A party’s decision to settle may be affected by the plausibility pleading standard required by Twombly. While previous empirical studies have focused on motions to dismiss, this study attempts to find a relationship between settlement rates and the pleading standard. Our data and analysis show that the probability of settling after Twombly has decreased while the rates of settlements themselves are increasing. In particular, IP and civil rights cases are especially likely to settle and "meritorious" claims settle at a higher rate than "non-meritorious" claims. These findings question the current arguments that the Twombly pleading standard may be inhibiting access to justice and/or improving efficiency. The goal of conserving judicial resources may have been circumvented by litigant behavior as more cases are going on to litigation rather than settling. The access to justice arguments may have also been challenged in that more cases are being adjudicated after Twombly instead of less.
Friday, May 17, 2013
Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Celebrating Civil Rulemaking. It reviews a recent article by Lonny Hoffman (Houston), Rulemaking in the Age of Twombly and Iqbal, which will appear in the U.C. Davis Law Review.