Measuring the Impact of Plausibility Pleading

Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced a change to federal pleading standards that had remained essentially static for five decades. Both decisions have occupied the attention of academics, jurists, and practitioners since their announcement. Iqbal alone has, as of this writing, been cited by more than 95,000 judicial opinions, more than 1,400 law review articles, and innumerable briefs and motions. Many scholars have criticized Iqbal and Twombly for altering the meaning of the Federal Rules of Civil Procedure outside the traditional procedures contemplated by the Rules Enabling Act. Almost all commentators agree that Iqbal and Twombly mark a break from the liberal pleading doctrine enunciated in 1957 by Conley v. Gibson…

The data presented here suggest some concrete costs of a heightened pleading regime. Important categories of cases are experiencing increased dismissal rates in 2010. Individuals are faring far worse than corporate and governmental litigants. And plausibility pleading is not paying dividends; it is not resulting in higher quality lawsuits. The current pleading regime has brought increased inequality, reduced access to justice, and provided little measurable benefit.

If there is a normative justification for the imposition of plausibility pleading, empirical support for it is elusive. Instead, the data presented here suggest two normative arguments against plausibility pleading. First, for those who believe that federal courts have an important role to play in cases involving the adjudication of public law norms, the increase in effective dismissal rates of civil rights cases is troubling. And although employment discrimination cases are not technically “public” law, they share many of the characteristics of civil rights claims, including remedying inequality, achieving structural reform in large institutions, and setting norms of behavior that pervade public life. Federal courts have historically played important roles in both categories of cases; plausibility pleading may interfere.

Even for those who do not believe that federal courts have a significant role to play in particular kinds of cases, however, the increased inequality based on institutional status that is associated with plausibility pleading should be concerning. Recall that in 2006, individual and corporate claimants experienced remarkably similar dismissal rates when confronted with a motion to dismiss. In 2010, however, those rates greatly diverged, with corporate claimants basically in the same place and individual claimants much worse off. When viewed through the lens of movants, the divergence is less stark, but no less concerning. Individual movants do better in 2010 than in 2006, but their improvement is limited to those cases in which their adversary is an individual claimant. In other words, plausibility pleading is associated with decreased access to justice for individuals, often to the benefit of corporations and governmental entities. Not long before Twombly was announced, rulemakers openly debated reforming the notice pleading standard, but set the issue aside after determining that it was unlikely “that proposals to abandon notice pleading, or to redefine it, would survive the full course of Enabling Act scrutiny.” The data reported here suggest that the Court was able to accomplish through judicial fiat what corporate interests could not, despite their best efforts, obtain through the more open, transparent, and deliberative rulemaking process.

Iqbal and Twombly are associated with a pleading regime in which plaintiffs do worse at nearly every stage. They are more likely to have their case dismissed, and less likely to proceed to discovery and adjudication of the merits of their claims. Even if they survive dismissal, the cases are less likely to be successful in 2010 than in 2006. In this light, it is difficult to see what value the new pleading standards have added to our civil justice system.

—————————————————