Wednesday, July 30, 2014

Michalski and Wood on Twombly and Iqbal at the State Level

Roger Michalski (Brooklyn Law School) and Abby Wood (USC Gould School of Law) have posted Twombly and Iqbal at the State Level to SSRN.

This paper contributes to the empirical literature on pleading standards by studying the effect of Twombly and Iqbal at the state level. Studying pleading in the states is appealing for three reasons.

First, the findings of this paper are the first to address the empirical workings of pleading regimes where most litigation in the United States occurs. States account for the majority of civil litigation, yet they are understudied doctrinally and empirically. Here, we examine filing behavior, the content and length of complaints, the use of amended complaints, voluntary dismissals, motion to dismiss filed, and dismissal rates. 

Second, federal civil procedures only vary across time. There is only one pre-Iqbal federal pleading regime and one post-Iqbal regime. When we consider pleading at the state level, we can leverage differences across space and time. When some states change pleading standards while others do not (as here), we are presented with a natural experiment on the effects of pleading standards ripe for empirical study.

Third, our focus on the state level allows us to introduce synthetic controls to the study of pleading. Using synthetic controls frees us from one of the basic vulnerabilities of using one specific state (or group of states) as a comparison category – the threat that the states are fundamentally different, and we are instead comparing apples and oranges. Synthetic controls allows us to construct a composite of states as a control state, which, by construction, is a close match to the treatment state. 

Until now, we simply did not know whether the existing literature at the federal level analyzed an outlier jurisdiction or whether pleading functions similarly in both state and federal courts. This paper fills that gap and lays the groundwork for future empirical research on national procedural uniformity and divergence.

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