Volume 101

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.

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Excising Federalism: The Consequences of Baker v. Carr Beyond the Electoral Arena

Some scholars argue that, because the post-Baker political question doctrine only implicates separation of powers at the federal level, the doctrine should be subsumed into standing doctrine, as the latter is similarly grounded in separation-of-powers concerns. This Note illustrates that we should not be too quick to relegate the political question doctrine to the doctrinal dustbin. As the history of the doctrine shows, a concern with federal courts’ involvement in the affairs of state governments in-formed the Court’s application of the doctrine before Justice Brennan transformed it in Baker. And as the examples of post-Baker cases like Larsen illustrate, there are areas of state governance where federal courts could use a doctrinal hook to avoid entangling themselves in state governmental procedures.

Justice Frankfurter argued in his Baker dissent that any list of factors for deciding justiciability should include federalism. As he put it, the “reluctance to interfere with matters of state government in the absence of an unquestionable and effectively enforceable mandate,” along with factors similar to those in Justice Brennan’s list, had “been decisive of the settled line of cases” dealing with Guarantee Clause challenges to state governmental action. As this Note has shown, Justice Frankfurter’s view not only carries historical weight, but his own list of relevant factors in political question cases could better handle cases like Larsen. Justice Brennan stated in Baker, “The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.” Ironically, his excision of federalism from the political question doctrine could promote the disorder he feared in cases like Larsen or DeJulio. Reincorporating federalism into the political question doctrine would therefore not only adhere to historical practice, but would also promote the “maintenance of governmental order” between the federal government and the states.

Insincere Rules

Insincere rules are dishonest in important ways. They endorse one set of preferences and values when rule-makers, including elected ones, hold another. They instruct regulated parties, under penalty of law, to do something that rule-makers do not want done. Dishonesty of those sorts may yield good consequences, but it may also yield bad ones, and it runs into deontological objections. These drawbacks may be particularly acute in one area, judicial decision making.

A rich literature addresses the merits of judicial candor and sincerity. Much of that work debates whether judges should provide complete accounts of their reasons for reaching decisions, or whether instrumental gains—preserving judicial collegiality, for example—justify doing less. Among other arguments, proponents of candor claim that transparent decision making makes judges accountable to law and strengthens courts’ legitimacy.

This Essay adds a new dimension to the debate. Judges often make rules; their precedents guide and constrain lower courts, government officials, and litigants. Most courts rely on executives to enforce their decisions, and higher courts cannot review every decision by lower courts. Consequently, judges have high enforcement costs, and that creates an incentive to use insincere rules. They may, for example, issue insincere interpretations of statutes that, if followed to the letter, would produce outcomes that they do not favor and that conflict with law. They may do so without admitting their insincerity—without being candid—as transparency would weaken the benefit of insincerity. Yet that lack of candor would not necessarily undermine their accountability to law or the legitimacy of courts. Insincere rules, by bringing the law in action closer to laws’ objectives, could improve judges’ accountability to law, or at least their fidelity to it. By aligning the law in action with the aim of the statute, insincere rules could enhance the legitimacy of courts, at least among those who know the law and observe the action. Insincere rules, then, do not raise all of the problems caused by a lack of candor. They scramble some intuitions by showing that lying can promote the rule of law.

None of that implies that insincere rules are good, but it does imply that they may not be so bad when used by judges or other rule-makers.

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