Soucek & Lamons on using "court-counting" to decide whether Twombly & Iqbal apply to defendants

Brian Soucek & Remington Lamons have published Heightened Pleading Standards for Defendants: A Case Study of Court-Counting Precedent, 70 Ala. L. Rev. 875 (2019). Here’s the abstract:

In over a thousand cases, federal district courts have considered whether the heightened pleading standards imposed on plaintiffs in Twombly and Iqbal also apply to the affirmative defenses raised in defendant’s answers. Courts are split, and alongside the usual textual and policy arguments they offer, a less expected consideration is often raised: the fact that a majority of other courts have decided the same way. Court-counting precedent, as we call this kind of reasoning, requires justification, not least because—as we find here—judges get their count wrong a full third of the time.

This Article—based on a study of 1,141 federal opinions decided in the ten years after Twombly—does two things. It provides the first comprehensive answer to an important doctrinal question: what pleading standard do federal courts apply to defendants—and how has that standard varied over time and across the country? Second, the Article reveals that judges deciding this issue have engaged in court-counting a surprising 27% of the time. Given the previously unacknowledged importance of court-counting precedent in the lower federal courts, this Article asks whether and when it is warranted.