Material Facts in the Debate over Twombly and Iqbal

This paper presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions from nearly 2,000 randomly selected employment discrimination and contracts cases to try to assess whether Twombly and Iqbal’s performance in filtering cases according to merit. I first explain how such data might be helpful in such an assessment, taking into account the possibility that parties’ behavior might have changed following Twombly and Iqbal. I find that even using this large collection of data——the most comprehensive data assembled to date to address this question—we cannot tell whether “TwIqbal” supporters or critics are more correct about the efficacy of the new plausibility pleading regime in the pre-discovery filtering of cases according to merit. This null result points to the very real possibility that plausibility pleading's case-quality effects—a quintessential empirical question—simply can't be answered using data. This paper’s basic message, then, is that empirical evidence is unlikely to settle the debate over the case-quality effects of the new pleading regime ushered in by Twombly and Iqbal. * This paper uses data collected for a Public Policy Report (“Report”) written for and released by the Searle Civil Justice Institute (“SCJI”) and the Law and Economics Center (“LEC”) at George Mason University. See Searle Civil Justice Institute, Measuring the effects of a heightened pleading standard under Twombly and Iqbal, October 2013, http://masonlec.org/site/rte_uploads/files/TwomblyIqbal%20Report%20by%20SCJI%20(George%20Mason%20Law%20%26%20Economics%20Center)%20October %202013.pdf . I draw heavily in some places—and possibly verbatim in a few—from the analysis and text of the Report. While the Report is copyrighted to the George Mason University LEC, I have permission to duplicate parts of the Report at will (emailed permission on file with author). I am grateful to the SCJI at the George Mason University LEC for its generous financial support of this project as well as for providing coders. I am also grateful for the many helpful comments I received from the judges, practitioners, and academics on the SCJI Board of Overseers, participants in the SCJI research workshop at George Mason University School of Law, and two anonymous referees provided by the LEC. I also thank Rita Choi for help managing early data collection and James Cooper for his management expertise and intellectual support for my work on this project, as well as current and former GMU School of Law students Dale Baker, Josh Branson, Corey Carpenter, Wei Fan, Patrick Vincent, and Chris Woolley, and current and former University of Pennsylvania Law School students Meredith Gage, Gary Ho, Jonathan Kaplan, James Klima, and Jonelle Saunders for all their hard work coding cases. In addition, this project could not have been completed without the data (and helpful discussions concerning it) provided by Thomson Reuters, nor the generous financial support in acquiring those data that was provided by the Oscar M. Ruebhausen Fund at the Yale Law School. I am also very grateful to Yale Law School Professor William N. Eskridge and Dean Robert C. Post for their enthusiastic support in acquiring these data. Finally, I had many valuable conversations with legal scholars too numerous to name; at the risk of offending those left out, I offer special thanks to Steve Burbank, Henry Butler, Joe Cecil, David Engstrom, William Hubbard, Daniel Klerman, Jon Klick, Bruce Kobayashi, Alan Morrison, and Joshua Wright. Please cite to 68 Stan. L. Rev. ___ (forthcoming)