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.
Thursday, May 16, 2013
Raymond H. Brescia and Edward J. Ohanian, both of Albany Law School, have posted on SSRN their new paper, "The Politics of Procedure: An Empirical Analysis of Motion Practice in Civil Rights Litigation Under the New Plausibility Standard."
civil procedure political? In May of 2009, the Supreme Court issued its
decision in Ashcroft v. Iqbal, which explicitly extended the
“plausibility standard,” first articulated in Bell Atlantic v. Twombly
two years earlier, to all civil pleadings. That standard requires that
pleadings, in order to satisfy Rule 8(a) of the Federal Rules of Civil
Procedure, must state a plausible claim for relief. For many, these
rulings represented a sea change in civil pleading standards. Where
prior Supreme Court precedent had provided that a pleading should not be
dismissed “unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim,” the new standard requires that
judges utilize their own “judicial experience and common sense” to
determine whether claimants have set forth facts sufficient to “nudge
their claims across the line from conceivable to plausible.” In the
years since their issuance, this standard has provoked many questions.
One such question, which lurks behind all otherwise neutral rules of
procedure is the following: could this apparently neutral principle of
procedure be subject to political manipulation?
After Twombly, and again after Iqbal, many expressed fears that the new plausibility standard offered judges too much discretion; a judge could dismiss a case where a plaintiff’s claims did not comport with that judge’s experience and common sense. There was a particular fear that this discretion would have a disparate and adverse impact on civil rights cases: i.e., if members of the federal bench were predisposed to disfavor such claims, they might use these precedents to dismiss civil rights cases too readily. Several years have now passed since the Court issued these decisions, and the district courts have compiled a body of thousands of decisions citing these precedents. As a result, it is now possible to assess the impact of these decisions on practice in the lower courts, particularly their effect on civil rights cases. The study described here attempted to do just that by looking at outcomes and trends in motions challenging the specificity of the pleadings in over 500 employment and housing discrimination cases over a period of six years (including decisions issued both before and after Twombly and Iqbal). This research reviewed the outcomes in such cases based on a number of metrics, including, most importantly, the political affiliation of the president who appointed the judge issuing each decision reviewed.
The study revealed a statistically significant relationship between the outcomes in civil rights cases and time period (i.e. pre-Twombly, post-Twombly but pre-Iqbal, and post-Iqbal) where the political affiliation of the president who appointed the judge reaching the decision in each case was Republican. For cases decided by judges appointed by Democrat-affiliated presidents, no such relationship was observed. This paper reports on the findings of this study and discusses their implications.
Tuesday, April 16, 2013
Now available online is an article by Arthur Miller (NYU) entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. L. Rev. 286 (2013). Here’s the abstract:
When the Federal Rules of Civil Procedure were promulgated in 1938, they reflected a policy of citizen access for civil disputes and sought to promote their resolution on the merits rather than on the basis of the technicalities that characterized earlier procedural systems. The federal courts applied that philosophy of procedure for many years. However, the last quarter century has seen a dramatic contrary shift in the way the federal courts, especially the U.S. Supreme Court, have interpreted and applied the Federal Rules and other procedural matters. This shift has produced the increasingly early procedural disposition of cases prior to trial. Indeed, civil trials, especially jury trials, are very few and far between today.
The author examines the significant manifestations of this dramatic change, and traces the shift in judicial attitude back to the three pro-summary judgment decisions by the Supreme Court in 1986. Furthermore, he goes on to discuss the judicial gatekeeping that has emerged regarding (1) expert testimony, (2) the constriction of class action certification, (3) the enforcement of arbitration clauses in an extraordinary array of contracts (many adhesive in character), (4) the Court’s abandonment of notice pleading in favor of plausibility pleading (which, in effect, is a return to fact pleading), (5) the intimations of a potential narrowing of the reach of in personam jurisdiction, and (6) a number of limitations on pretrial discovery that have resulted from Rule amendments during the last twenty-five years.
All of these changes restrict the ability of plaintiffs to reach a determination of their claims’ merits, which has resulted in a narrowing effect on citizen access to a meaningful day in court. Beyond that, these restrictive procedural developments work against the effectiveness of private litigation to enforce various public policies involving such matters as civil rights, antitrust, employment discrimination, and securities regulation.
Concerns about abusive and frivolous litigation, threats of extortionate settlements, and the high cost of today’s large-scale lawsuits motivate these deviations from the original philosophy of the Federal Rules, but these concerns fail to take proper account of other systemic values. The author argues that these assertions are speculative and not empirically justified, are overstated, and simply reflect the self-interest of various groups that seek to terminate claims asserted against them as early as possible to avoid both discovery and a trial. Indeed, they simply may reflect a strong pro-business and pro-government orientation of today’s federal judiciary. The author cautions that some restoration of the earlier underlying philosophy of the Federal Rules is necessary if we are to preserve the procedural principles that should underlie our civil justice system and maintain the viability of private litigation as an adjunct to government regulation for the enforcement of important societal policies and values.
Friday, December 7, 2012
Scott Dodson of University of California Hastings College of the Law has posted on SSRN his paper, “A New Look: Dismissal Rates in Federal Civil Cases,” forthcoming in 96 Judicature.
In the wake of Twombly and Iqbal, a number of studies have been conducted to determine the decisions' effects on dismissal practice in federal civil cases. However, those studies have tended to code whole cases rather than claims -- leading to the ambiguous coding category of “mixed” dismissals and to problems in characterizing the nature of the dispute -- and have failed to distinguish between legal sufficiency and factual sufficiency, potentially masking important detail about the effects of the pleadings changes.
This paper begins to fill in that detail. I compiled an original dataset of district court opinions and coded each claim -- rather than whole case -- subject to an adjudicated Rule 12(b)(6) motion. For each claim, I also determined whether the court resolved the motion on grounds of legal or factual sufficiency. This methodology opened an unprecedented level of granularity in the data.
The data reveal statistically significant increases in the dismissal rate overall and in a number of subsets of claims. I also find an increase in the relative prevalence and efficacy of factual-insufficiency arguments for dismissal. Perhaps surprisingly, I find a decrease in the relative prevalence and efficacy of legal-insufficiency arguments for dismissal. These data and insights on the rationales of dismissals are new to the literature and suggest that Twombly and Iqbal are affecting both movant strategy and judicial reasoning.
Friday, October 5, 2012
To be published in Texas Tech Law Review and posted on SSRN: Are Twombly & Iqbal Affecting Where Plaintiffs File? A Study Comparing Removal Rates by State, by Jill Curry and Matthew Ward.
This article originated from a 2010-11 study the Federal Judicial Center conducted to examine the impact, if any, of the Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on civil litigation in the United States federal courts. To examine this impact, we compared removal rates of cases to federal courts between states using notice pleading standards and states using fact pleading standards. We predicted that heightened pleading standards in federal courts would encourage plaintiffs in cases with federal and state claims, especially plaintiffs alleging a violation of their civil rights, to file in
state courts to benefit from the liberal notice pleading standard. Therefore, defendants would be more likely to remove such cases filed in notice pleading state court to federal courts to take advantage of the newly announced heightened pleading standard. After reviewing existing commentary and existing empirical research about the impact of Twombly and Iqbal, we explain the methodology for our removal study, present the results of a preliminary study to examine removal rates of four states, and subsequently present the results of our expanded examination of removal rates of all fifty states and the District of Columbia. However, the results demonstrate that these expectations were not met. There was no systematic increase in the rate of removal after Twombly and Iqbal and the effect was not more pronounced in notice pleading states compared to fact pleading states, questioning the assertion that cases are being diverted from federal court to state courts due to heightened pleading standards.
Wednesday, August 8, 2012
Lonny Hoffman has just posted on SSRN the above-titled paper.
In this article I am essentially trying to answer one critical question: Faced with the controversy triggered by the Supreme Court’s decisions in Bell Atlantic Co. v. Twombly (2007) and Ashcroft v. Iqbal (2009), particularly over access to the courts, why have judicial rulemakers not proposed rule reforms to address the concerns raised? This question is particularly puzzling when one realizes that over the last seventy-five years the rules committees have consistently rejected proposals to stiffen pleading requirements along lines similar to what the Court decreed in Twombly and Iqbal. It is as if Congress had repeatedly voted against amending a statute that had been on the books for years only to have the Court through judicial interpretation effectively rewrite the law as though it had been amended. While we reasonably might predict that at least some in Congress would call for a legislative response if this happened, five years after Twombly no proposals for rule reform have been forthcoming and there is no momentum on the rules committees in favor of reform. Why? In this paper I argue that uncovering what has kept rulemakers from acting in the past permits us to interrogate whether those reasons can justify the same course in the future. Ultimately, I conclude that the justifications of the past are no longer sufficient and that the case for immediate rule reform is strong. Beyond its immediate relevance to the unresolved pleading problem, the added perspective gained by examination of the rulemakers’ deliberations can also deepen our understanding of the rulemaking process generally, providing new insights about how the process of making new rules and evaluating existing ones may be improved.
Tuesday, May 29, 2012
Now available on the Courts Law section of JOTWELL is an essay by Prof. Suzette Malveaux (Catholic University) entitled Plausibility Pleading and Employment Discrimination. It reviews a recent article by Prof. Charles Sullivan (Seton Hall), Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613 (2011). The review begins:
In a sea of law review articles analyzing the potential impact of the more rigorous federal pleading standard of Ashcroft v. Iqbal, Charles Sullivan’s Plausibly Pleading Employment Discrimination stands out for a number of reasons. As an initial matter, Sullivan grapples with an important question plaguing the civil rights community and the employment bar: does Swierkiewicz v. Sorema—the unanimous 2002 opinion that took a lenient approach to pleading discrimination cases—remain good law post-Iqbal? Sullivan argues that Iqbal did not overturn Swierkiewicz, leaving intact the ability of plaintiffs to plead employment discrimination without alleging a prima facie case under the McDonnell Douglas test.
But Sullivan then considers the alternate view: assuming arguendo that Iqbal did overrule Swierkiewicz, what should plaintiffs do to avoid dismissal for failure to state a claim under this more rigorous pleading regime? Sullivan offers a variety of approaches, each with strengths and weaknesses. This willingness to explore the proverbial edge of the envelope makes this article a compelling read. It combines pragmatism, creativity, and boldness at a time when many are struggling to make sense of the impact of the new federal pleadings standard in the civil rights arena. Given the importance of pleadings as an access to justice issue, this article provides an invaluable perspective.